c. Selection from the Argumentation of the Defense

_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT KARL BRANDT_

* * * * *

_The Punishable Crime Against Humanity_

The criminality of the crime against humanity is based on Law No. 10 of the Control Council for Germany. Article II of this law states—

“1. Each of the following acts is recognized as a crime:

* * * * *

_c._ Crime against humanity * * *.”

The concept of the crime against humanity has not been established and it is questionable whether crimes against humanity according to Law No. 10 also refer to such acts as have been committed on German nationals by German nationals. The decision of this question is of particular significance since the medical experiments with which the defendants are charged and the mercy killings executed were, in the first place, carried out on German nationals.

The question here is not to establish whether such acts are against humanity but whether they are crimes against humanity punishable according to Law No. 10 which were committed knowingly and willfully. If measures taken against German nationals do not come under the law, the evidence of the prosecution to be examined is restricted mainly to those cases in which certain foreigners were affected, and in addition, evidence must be produced proving that the defendant was aware of the fact that foreigners too had actually been involved by these measures.

It is to be understood from Law No. 10 that it is merely an _implementation law_ to the London Agreement of 8 August 1945 and the statute belonging to it. This has been expressly stressed in the introduction, and beyond that the London Statute and the Moscow Declaration of 30 October 1943 have been declared inseparable components of the law according to Article I.

The legally pre-eminent London Statute therefore is decisive for the interpretation of the substantive law. Article 6(c) of this statute provides that crimes against humanity can be considered punishable only if they were committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal * * *”. This jurisdiction, however, extends only to crimes against peace and to war crimes. The punishable crime against humanity, therefore, is restricted to the latter. The prosecution, however, has only recently championed a different opinion. In Case 5 before Tribunal IV, the case against Flick and others,[129] the prosecution declared in its opening statement on 19 April 1947 that the clause: “in connection with a crime within the jurisdiction of the tribunal” has a different meaning from what it expresses. The clause is to signify that the Tribunal is not to deal with individual crimes but only with such crimes as have been committed on _a large scale_ and are therefore within the jurisdiction of the trial.

This meaning of the clause was not apparent to the International Military Tribunal, the prosecutors of the signatory powers at that time, nor to those who later commented on the verdict, and I do not believe that one can agree with the newly established interpretation of the prosecution. The decision of the _International Military Tribunal_ is authoritative for the interpretation since it was pronounced by the judges of the signatory powers who were expressly appointed for application of the new law. _The high authority_ of the International Military Tribunal is emphasized by Ordinance 7, Article X, according to which its actual findings are binding for the later courts.

This International Military Tribunal, however, has ruled that the punishable crime against humanity is a _dependent, subsidiary crime_ and that it can only be considered a crime if it has been committed in connection with a war crime or a crime against peace. The verdict of the International Military Tribunal[130] in rejecting the criminality of crimes against humanity committed prior to the war states the following:

“The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime.”

The _prosecution before the International Military Tribunal_ has on its part endeavored to prove such a connection; this would not have been necessary if it had not considered this connection a part of the specification of the crime against humanity. Professor Donnedieu de Vabres, the French judge of the International Military Tribunal, expressed his attitude to this limitation of the punishable crime against humanity after the pronouncement of the verdict in a lecture quoted by the prosecution in the Flick case;[131] his opinion can be considered important. The French judge deplores the limitation of the crime against humanity, but he confirms it. This limitation is no figment of the imagination but the _necessary result_ of the prevailing international law; it has its origin in the concept of _sovereignty_.

It is the purport of the _Moscow Declaration_ and the London Statute, both of which have been incorporated into Law No. 10, to deal only with the crimes that affect the relations between nations. These relations are to be safeguarded and for that reason crimes are to be punished which are significant according to international law and which are connected with war crimes and crimes against peace. The “_international_” crimes are to be punished.

This significance of the international crime to be understood from the point of view of international law is especially clearly expounded in a book written by Professor Trainin who was the official advisor on judicial matters for the _Soviet Union_ in the proceedings in Case I, the International Military Tribunal. This is a book entitled “The Criminal Responsibility of the Hitlerites” published by the Law Institute, Academy of Science in the Soviet Union, through [edited by] the academician Vishinsky. The book was written at the time the statute originated. According to this, it is not the meaning and purpose of “international criminal law” to impose punishment for crimes which have no effect _beyond the borders of their own country_ and which do not involve the _sphere of international law_.

The fact that no thought was given to punishment of crimes committed within the borders of Germany is evident from the _Moscow Declaration_ of 30 October 1943. In this declaration crimes are mentioned exclusively which have been committed in other countries to which the accused are to be _returned_.

If there could still be doubts with regard to the interpretation of the subsidiary nature of the crime against humanity, these doubts are eliminated by the _Berlin Addendum Minutes_ [Zusatzprotokoll] added to the statute, dated 6 October 1945. In these minutes the subsidiary nature of the crime against humanity is elucidated by means of a _correction_, the apparent insignificance of which is the very thing that serves to emphasize its importance. According to this, the four Allied Main Powers, as the signatories of the statute, meet again only for the purpose of transforming a _semicolon into a comma_ and it appears in the minutes that this was done because the meaning and intentions of the agreements and the statute require it.

Article 6 (c) of the statute was originally worded as follows and even at present is reproduced in many copies in the same form as far as punctuation is concerned:

“(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war ‘;’ or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

The wording of the Berlin Addendum Minutes [Protocol] dated 6 October 1945 in this context reads as follows:[132]

“Whereas an Agreement and Charter regarding the Prosecution of War Criminals was signed in London on the 8th August 1945, in the English, French, and Russian languages,

“And whereas a discrepancy has been found to exist between the originals of Article 6, paragraph (c), of the Charter in the Russian language, on the one hand, and the originals in the English and French languages, on the other, to wit, the semicolon in Article 6, paragraph (c), of the Charter between the words ‘war’ and ‘or’, as carried in the English and French texts, is a comma in the Russian text,

“And whereas it is desired to rectify this discrepancy:

“NOW, THEREFORE, the undersigned, signatories of the said Agreement on behalf of their respective Governments, duly authorized thereto, have agreed that Article 6, paragraph (c), of the Charter in the Russian text is correct, and that the meaning and intention of the Agreement and Charter require that the said semi-colon in the English text should be changed to a comma, and that the French text should be amended to read as follows:

“(c) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat, l’extermination, la réduction en esclavage, la déportation, et tout autre acte inhumain commis contre toutes populations civiles, avant on pendant la guerre, ou bien les persécutions pour des motifs politiques, raciaux, ou réligieux, lorsque ces actes ou persécutions, qu’ils aient constitué ou non une violation du droit interne du pays où ils ont été perpétrés ont été commis à la suite de tout crime rentrant dans la compétence du Tribunal, ou en liaison avec ce crime.

“In witness whereof the Undersigned have signed the present Protocol.

“Done in quadruplicate in Berlin this 6th day of October 1945, each in English, French, and Russian, and each text to have equal authenticity.

For the Government of the United States of America: [Signature] ROBERT H. JACKSON For the Provisional Government of the French Republic: [Signature] FRANÇOIS DE MENTHON For the Government of the United Kingdom of Great Britain and Northern Ireland: [Signature] HARTLEY SHAWCROSS For the Government of the Union of Soviet Socialist Republics: [Signature] R. RUDENKO”

Obviously it was no printing error which simply would have been corrected. This is rather a _carefully thought out limitation_ on the part of the Signatory Powers which was _clarified_ unmistakably. Without this limitation, a _precedent_ of decisive significance would have been created for _international law_ for the possibility would have existed to prosecute at any time alleged crimes against humanity in a different country. According to this, the socialist states would have assailed the social conditions in capitalistic countries as crimes against humanity, and vice versa the capitalistic states could have replied to the measures of the socialist countries with an _intervention_ as experienced by the young Bolshevist Revolution in 1919. Precisely that however was to be prevented by not recognizing an independent crime against humanity for the protection of sovereign states. Professor Donnedieu de Vabres has particularly mentioned this point of view in his lecture _as a decisive point of view of the International Military Tribunal_.

The same restrictive view of this question is taken in the latest _International Law of the United Nations Organization_ (UNO), Chapter I, Article 2, paragraph 7 of the resolution of San Francisco, concerning the establishment of UNO, dated 26 June 1945, reads that an _interference_ in matters which are within the jurisdiction of the country is _inadmissible_. Accordingly it is a fixed principle of international law even today that proceedings within a state cannot entail sanction; spoken in the words of the statute, there are no independent crimes against humanity, which might be punished as international crimes.

The opinion of Hugo Grotius and his numerous adherents is rejected and is no longer valid as international law today. _Interventions from points of view of humanity are declined_, as their motive seems suspicious to the states.[133]

Decisive alone is the practice of the members of the _body of the nations who have agreed on international law_ (Voelkerrechtsgemeinschaft) and the existing agreements on international law.

These _legal realities_ must be contrasted with the extravagant opinion, which believes that the protection of humanity can only be safeguarded by a kind of international sovereignty limited by the sovereignty of the individual states. This would be an aim which we would most sincerely desire to attain, but practice shows that there are plenty of crimes against humanity even today, but _no institution_ which has the power to punish them. There will never be such an institution, except insofar as it concerns the totally _vanquished after a total war_, to which in the future every war must lead.

Another point of view is quoted too which, in face of the decision of the IMT and while avoiding a precedent, will make crimes against humanity independent, at least insofar as application in Germany is concerned, with the effect that crimes of Germans against Germans could be punished by the military tribunals of the occupying power.

It is maintained that the _authority of the Control Commission_ for Germany _with regard to national law_ gave them the power to extend the scope of punishment for crimes against humanity, independent of the statute. This is opposed by the elementary principle of international law that the _legislative authority_ of an occupying power _only_ begins _with the moment of occupation_ and therefore can have _no retrospective force_. This principle is not in opposition to the theory that international law acknowledged a so-called “_retrospectiveness_” for war crimes in a wider sense, for this retrospectiveness only refers to the “_international crimes_” which are effective outside of one’s own country and have an immediate influence from the point of view of international law. There it serves to carry through international penal law, the realization of which would _otherwise be impossible_. Here the so-called retrospectiveness means nothing else but that international law takes precedence over national law. This international point of view can have no value for national law.

If a different rule were in operation, all persons who supported the political opponent, i. e., the so-called “_patriots_” might be punished after the occupation of a country, and Hitler’s Commissar Order [Kommissar-Befehl] according to which all active Communists were to be shot, would be sanctioned, because they were Communists and because of that were declared enemies of mankind, i. e. “criminals against humanity.”

Such a _checking of the “morals”_ of the enemy seems inadmissible; the checking of the conditions in one’s own country is a matter for the people itself; the latter may, on account of its laws, or in a revolution, prosecute its compatriots itself, on the grounds of their behavior. The IMT kept just to this fundamental idea of the statute and one cannot push this law aside arbitrarily by declaring on political grounds that _in order to secure peace and democracy_ all actions committed formerly in the country must be punished as crimes against humanity.

By such an interpretation of the authority in national law you would place yourself in strong opposition to the _proclamation of General Eisenhower_ on the occasion of the occupation of Germany; this was incorporated in Law No. 1 of Military Government, and the following was decreed under threat of death in case of violation:

“Accusation may only be brought in, sentence only be passed and punishment be inflicted, if a law which was in force at the time when the act was committed expressly declares this action punishable. Punishment of acts as a result of application of analogy or according to the opinion of the ‘sound popular feeling’ is prohibited.”

Then attempts were made to support the unlimited legislative right of the occupying power by other means, and they referred to a “_debellatio_” or “_quasi-debellatio_” or to the fact that Germany had _capitulated unconditionally_.

Disregarding the fact that no _debellatio_ is in hand and that only the Allies pronounce themselves occupying powers, and, without mentioning that Grossadmiral Doenitz[134] _had no valid authority_ to renounce the protective international law for the German people, the valid law is clearly laid down in the _Hague Convention_. The regulations contained there in _Chapter III_ have been created just for a capitulation situation and regulate the _right of occupation_.

Unconditional capitulation does not mean renunciation of the protection of international law nor submission to arbitrariness and illegality; but _capitulation within the framework of the war conventions_, i. e., within the framework of the Hague Convention.

These provisions of the Hague Convention are not only valid for the time of actual fighting, but must be valid also for the _time after cessation of the actual hostilities_ until the peace treaty. The fundamental idea of the Hague Convention is the protection of the population against the arbitrariness of the enemy, and it cannot be permitted that after cessation of hostilities _stricter rules_ may be applied to the inhabitants of an occupied territory _than during the time of actual fighting_. In the time when the occupying power hardly seems endangered any more the arbitrariness of a belated punishment of political opponents for actions, which they did in their own country according to the laws of their own country, must not rule.

Law No. 10 cannot disregard this international law, which was acknowledged by the International Military Tribunal after it had been issued and this Tribunal will have to check the _authority of the Control Commission_ and watch that no measures are taken of which the participating peoples of the Signatory States are not informed officially, as the decisive laws were submitted to _no special ratification_.

Thus we come to the conclusion that the crime against humanity _of Law No. 10_ must be the _same as that of the statute_. Bound to a war crime it cannot be applied to actions of Germans against Germans. Connected with a _crime against peace_ you can imagine such crimes against Germans, but these crimes must be in the execution of or in connection with a crime against peace. So at least there must be a _close connection_ with a _certain crime_.

Certainly it cannot be sufficient, therefore, that an act against a German is committed during a war and objectively furthered the war, but the perpetrator _must have known_ that his action was in _connection_ with a certain crime against peace, even if he himself were not guilty of it. Without this limit, all hard measures, which are taken during a war even against one’s own population, as for example against conscientious objectors and saboteurs, ought to be punished as crimes against humanity in connection with a crime against peace, if this war is declared to be an aggressive one by the enemy, after it has been lost.

Therefore _certain_ things must be in hand which make the crime _obvious_ and prove the connection. If you were to decide otherwise the well-formulated specifications of the statute would be superfluous, and likewise the protection of the population by the Hague Convention would be set aside in an inadmissible way, as the execution of every ordered war measure can be declared “inhuman”. This interpretation of the subsidiary nature of the crime against humanity is confirmed, if one ascertains what _the real crime against humanity_ itself is _primarily_ supposed to be.

In the Flick[135] case the prosecution tried to make a definition from Article 6 (c) of the statute. They referred to the clause “_in connection with a_ crime within the jurisdiction of the court”, and interpreted this as follows: That crimes of especially _large proportions_ must be in question, since the International Military Tribunal should only deal with such. Such an interpretation cannot be maintained, as the International Military Tribunal is competent for _the most insignificant war crime too_, and for every crime against peace, regardless of its dimensions.

It must be admitted that the statute _does not contain a definition at all_ and that characteristics of a crime against humanity are _not stipulated_. If you want to find such a specification for an independent crime against humanity, which is detached from crimes against peace and war crimes, you can only fall back on the notorious “_sound feeling_” and you will get lost in the void, because its limits are not fixed, but shift according to the _political wish_.

Here you can point to the fact that Germany’s unrestrained _U-boat war_ during the First World War was then pilloried as a _crime against humanity_ and caused America to enter the war. During World War II, however, the same manner of warfare was used by the USA against Japan; this was cleared up before the International Military Tribunal by an affidavit of Admiral Nimitz.[136]

The answer to the question as to what the crime against humanity itself consists of can only be given from the _examples of the statute_ and can be supported by the _interpretation_ which the International Military Tribunal has given. According to this the _crime against humanity_ is the _aggravation_ of a war crime or a crime against peace. It differs from these crimes by its _dimension_, its _system_, and the _manner_ of execution. This can be deduced from the wording of the text of the statute where as typical examples are quoted: “extirpation, enslavement, deportation”.

In cases of crimes against humanity, according to this, actions must be in question which are punishable in themselves already, but in addition to this go further and are extended, so that they are _“qualified” crimes_. The dimension of the crimes is confirmed by the _wording of the Russian text_, which does not mention “homicide” but “homicides” in the plural, and not “persecution” but “persecutions” in the plural. The Russian text of Law No. 10 is worded similarly.

This opinion is confirmed in two places by the decision of the International Military Tribunal. The question of crimes against humanity is specially dealt with there in the section “War Crimes and Crimes against Humanity”,[137] and in the section “The Law Relating to War Crimes and Crimes against Humanity”.[138] Here the actions which are pronounced as _crimes against humanity_ are characterized as perpetrated “_on a large scale_” and as “methodically” and “systematically” executed. They are called “terror politics” and are called “terrible and brutal” as well as “utterly ruthless”, “deterrent and horrible”. Not isolated murder nor isolated imprisonment nor the isolated boycotting of a Jew is meant, but only a _general measure_ which violates “the most elementary laws of humanity”.

These are not actions which an _individual_ can execute _alone_; he needs _organized_ help for that. _Therefore_ the _perpetrator can only be a commander_; he who obeys is his tool and can only become a punishable assistant. Here the individual does _not_ act _from his own_ criminal _motive_, but he acts according to order and higher instruction. Therefore the _motive_ of the action is basically _political_. Above all, the Hague Convention had in mind common _crimes of individuals_, which are rejected by the states themselves and which they themselves prosecute by penal law in the interest of humanity. For this purpose the states had issued corresponding national laws.

In the development of this idea, it is from now on a question of preventing political measures, which are _methodically carried through by the state_, by international penal law, i. e., measures which are rejected by the International Military Tribunal as “barbaric methods” and as “methods for breaking every resistance.”

The rejection of such methods as crimes against humanity was expressed for the first time in _the Hague Convention [Annex] in Article 22_, according to which the belligerent nations have no unlimited right in the choice of means for doing damage to the enemy. Now the perpetrators of these actions are to be _punishable_.

Which means are still permitted in battle, however, and which methods are still admissible, can only be gathered from the practice of the states. If you look for an independent _measuring rod for humanity_, you must establish that things seem still admissible which force us to stop a moment. The destruction of hundreds of thousands of inhabitants of an unprotected city by bomb carpets and the use of the atomic bomb makes a discussion rather senseless, as humanity did not object to these horrors, which in future will even be surpassed.

_This measuring rod must_ not be forgotten if you proceed to the judgment of the crimes against humanity of which people are accused here. If such monstrosities are deemed admissible on one side, while similar actions on the part of the enemy are condemned, the _judgment_ of humanity can only depend on the approval or disapproval of the _purpose and aim_, and thereby loses the name of justice.

The firm ground on which the punishable crime against humanity rests, can only be the _proved war crime_ or a _definite crime against peace_.

[119] Trial of the Major War Criminals, vol. I, pp. 253-255, Nuremberg, 1947.

[120] Ibid., p. 254.

[121] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[122] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.

[123] Control Council Law No. 10, Article III, par. 1(d) and 2, Military Government Ordinance No. 7, Article II.

[124] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.

[125] Ibid., pp. 231, 247, 252, 254, 301.

[126] Ibid., pp. 174, 253.

[127] Ibid., pp. 254, 255.

[128] Ibid.

[129] United States _vs._ Friedrich Flick, et al. See Vol. VI.

[130] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.

[131] Lecture of Professor Donnedieu de Vabres, Association des Etudes Internationales “Le Procès de Nuremberg.” Library of the International Military Tribunal XII 259.

[132] Translation of Protocol in this brief differed from original English copy. Authentic English version has been inserted here.

[133] Compare literature of the Soviet Union. (_Karl Brandt 188_ [not introduced in evidence].)

1. History of the all-Soviet Communist Party (Bolshevists). Under the editorial management of the commission of the Central Committee of the Communist Party 1938 (Bolshevists) approved by the Central Committee of the Communist Party OGIS State Publishing Office for Political Literature 1945, chapter 8:

“The party of the Bolshevists during foreign military intervention and the Civil War 1918-1920, page 215.

2. “Intervention,” play in 4 acts by Salawin [Slavin] 1940, Moskau [Moscow]-Leningrad (_Karl Brandt 127_ [not introduced in evidence]).

[134] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.

[135] United States _vs._ Friedrich Flick, et al. See Vol. VI.

[136] Trial of the Major War Criminals, vol. XVII, pp. 377-381, Nuremberg, 1948.

[137] Ibid., vol. I, pp. 226-228.

[138] Ibid., vol. I, pp. 253-255.

B. Responsibility of Superiors for Acts of Subordinates

a. Introduction

Defendants who were in high positions in the German medical service rejected responsibility for the alleged criminal conduct of their subordinates. The prosecution argued that it “would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, instigators, and organizers go free.” The prosecution, for example, argued that Karl Brandt held supreme authority over all medical services in Germany, both military and civilian; that Handloser was the Chief of the Medical Services in the Wehrmacht; that Rostock was Karl Brandt’s deputy charged with the task of “centrally coordinating and directing the problems and activities of the entire medical and health service” in the field of science and research; that Schroeder was the Chief of the Medical Service of the Luftwaffe; that Genzken was the Chief of the Medical Service of the Waffen SS; that Blome was the Deputy Reich Health Leader; and that these men were clearly responsible for the acts of their subordinates in their respective sectors.

The prosecution’s summation of evidence on this question has been taken from the closing statement which appears below on pages 926 to 936. Extracts from the final pleas for the defendants Karl Brandt, Schroeder, Rostock, and the closing briefs for Handloser, Genzken, and Blome appear on pages 936 to 957.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION_[139]

* * * * *

_The Responsible Leaders of the Medical Services_

In view of the clear and overwhelming proof, it can only be concluded that the practice of experimentation on concentration camp inmates without their consent was an organized and systematic program. It is, therefore, appropriate to consider whether we have in this dock the leaders of the German medical services without whom these crimes would not have been possible. It would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, organizers, and instigators go free. It has been established beyond controversy that these things could not have happened without cover from the top. Who, then, were these men on the top? Their survivors, with one exception, are all in this dock.

In the number one seat we have the defendant Karl Brandt. He held supreme authority over all the medical services in Germany, both military and civilian. He joined the Nazi Party in January 1932 and the SS in 1934, in which he rose to the rank of Gruppenfuehrer [Major General]. In the latter year, at the age of 30, he became the attending physician to Adolf Hitler and retained this position until 1945. His close personal relationship to the Fuehrer explains his rapid rise to power. On the day Poland was invaded in 1939, Hitler ordered Brandt and Philipp Bouhler, the Chief of the Chancellery of the Fuehrer, to carry out the so-called Euthanasia Program.

Aside from his personal influence and intimate connection with Hitler, Brandt’s greatest power in the medical services came from his position as General Commissioner and later Reich Commissioner of the Health and Medical Services. As a result of the disastrous winter campaign in the East in 1941, Hitler established for the first time a medical and health official under his direct control by decree of 28 July 1942. This decree made Brandt the supreme authority over all medical services in Germany. It stated in part as follows:

“I empower Professor Dr. Karl Brandt, subordinate only to me personally and receiving his instructions directly from me, to carry out special tasks and negotiations, to readjust the requirements for doctors, hospitals, medical supplies, etc., between the military and the civilian sectors of the Health and Medical Services.

My plenipotentiary for Health and Medical Services is to be kept informed about the fundamental events in the Medical Services of the Wehrmacht and in the Civilian Health Service. He is authorized to intervene in a responsible manner.” (_NO-080, Pros. Ex. 5._)

By the same decree chiefs were also commissioned for the Medical Services of the Wehrmacht and the Civilian Health Service. The defendant Handloser became Chief of the Medical Services of the Wehrmacht, while Dr. Leonardo Conti, State Secretary for Health and the Reich Health Leader, was made Chief of the Civilian Health Services. Brandt was the superior of both Handloser and Conti, and through them had extensive powers over the Army, Navy, Luftwaffe, Waffen SS, and Civilian Medical Services. Brandt stood at the apex of power. He was subordinated to no one save the Fuehrer. He was the man to act for the Fuehrer in medical matters. The decree authorized Brandt “to intervene in a responsible manner” and directed that he be kept informed of “fundamental events”. Certainly nothing could be more fundamental than a policy of performing medical experiments involving the torture and death of involuntary human subjects.

On 5 September 1943 Hitler issued a second decree empowering Brandt “with centrally coordinating and directing the problems and activities of the entire medical and health services * * *”. (_NO-081, Pros. Ex. 6._) The order expressly stated that Brandt’s authority covered the field of medical science and research. Shortly following the issuance of this decree, the defendant Rostock was appointed by Brandt as Chief of the Office for Science and Research, with plenary powers in that field.

Finally, on 25 August 1944, the Fuehrer elevated Brandt to Reich Commissioner for the Health and Medical Services and stated that in this capacity “his office ranks as highest Reich authority.” Brandt’s position was thus equivalent to that of a Reich Minister. He was authorized “to issue instructions to the offices and organizations of the State, Party, and Wehrmacht, which are concerned with the problems of the Medical and Health Services”. (_NO-082, Pros. Ex. 7._) It is clear that this decree was issued to resolve a struggle for power between Brandt and Conti. Certainly the decree does no more than give Brandt a more august title and restate his powers, powers which he had already received as early as July 1942. Brandt testified that it merely “strengthened” his position. A service regulation issued by Keitel for Handloser, as Chief of the Medical Services of the Wehrmacht, at a time when Brandt was still General Commissioner, provided that Handloser was subject to the “general rules of the Fuehrer’s Commissioner General for the Medical and Health Services” and that Brandt had to be informed of the “basic events” in the field of the Medical Services of the Wehrmacht. In a pretrial affidavit the defendant Handloser stated that after he became Chief of the Medical Services of the Wehrmacht on 28 July 1942 “Brandt was my immediate superior in medical affairs.” (_NO-443, Pros. Ex. 10._) Schroeder stated that “Karl Brandt, Handloser, and Rostock were informed of the medical research work conducted by the Luftwaffe.” (_NO-449, Pros. Ex. 130._) In addition to his position as General and Reich Commissioner of the Health and Medical Services, Brandt was also a member of the Presidential Council of the Reich Research Council, an organization which gave financial support for criminal experiments.

In the number two seat is the defendant Handloser who held supreme power over the medical services of all branches of the Wehrmacht. Early in 1941 he was appointed Army Medical Inspector and Army Physician [Army Medical Chief (Heeresarzt)]. He held these positions until September 1944 and as such had complete command over the entire Army Medical Services which was by far the largest of the medical branches of the Wehrmacht. In his capacity as Army Medical Inspector, Handloser had subordinated to him the Consulting Physicians of the Army, the Military Medical Academy, the Typhus and Virus Institutes of the OKH at Krakow and Lemberg [Lvov], and the Medical School for Mountain Troops at St. Johann. He attained the rank of Generaloberstabsarzt, the highest military medical rank.

On 28 July 1942, Handloser was elevated to the newly created position of Chief of the Medical Services of the Wehrmacht. This was the same decree which appointed Brandt General Commissioner, to whom Handloser, on the military side, and Conti, on the civilian side, were subordinated. Handloser was charged with the coordination of the Medical Services of the Wehrmacht and all organizations and units subordinated or attached to the Wehrmacht, including the Medical Services of the Waffen SS. Prior to this decree there were four separate medical branches of the Wehrmacht, the Army, Luftwaffe, Navy, and Waffen SS, each operating independently of the other. Pursuant to this decree, Handloser was appointed to coordinate and unify their operations and was directly responsible to Keitel as Chief of the Supreme Command of the Wehrmacht (OKW). He had authority over the Chiefs of the Army, Navy, Luftwaffe, and Waffen SS Medical Services, and all organizations and services employed within the framework of the Wehrmacht, and over “_all scientific medical institutes, academies, and other medical institutions of the services of the Wehrmacht and of the Waffen SS_.” [Emphasis added.] (_NO-227, Pros. Ex. 11._) He was the adviser of the Chief of the Supreme Command and of the Wehrmacht in all questions concerning the medical services of the Wehrmacht and of its health guidance. In the field of medical science, his duties were to carry out uniform measures in the field of health guidance, _research and combating of epidemics_, and all medical matters which required a uniform ruling among the Wehrmacht, and further, _in the evaluation of medical experiences_.

One of the principal means used by the defendant Handloser in coordinating scientific research was the joint meeting of consulting physicians of the four branches of the Wehrmacht. At the Second Meeting East of Consulting Physicians in December 1942 at the Military Medical Academy, Handloser himself pointed out quite clearly the task of the Chief of the Medical Services of the Wehrmacht in unifying medical scientific research. In addressing the full meeting he said:

“The demands and extent of this total war, as well as the relationship between needs and availability of personnel and material, require measures, also in military and medical fields, which will serve the unification and unified leadership. It is not a question of ‘marching separately and battling together’, but marching and battling must be done in unison from the beginning in all fields.

“As a result, with respect to the military sector, the Wehrmacht Medical Service and with it the Chief of the Medical Services of the Wehrmacht came into being. Not only in matters of personnel and material—even as far as this is possible in view of special fields and special tasks which must be considered—but also with a view to medical scientific education and research, our path in the Wehrmacht Medical Service must and will be a unified one. Accordingly, the group of participants in this Second Work Conference East, which I have now opened, is differently composed from the First Work Conference in May of this year. Then it was a conference of the army; today the three branches of the Wehrmacht, the Waffen SS and Police, the Labor Service and the Organization Todt are participating and unified.

“You will surely permit that I greet you with a general welcome and with the sincere wish that our common work may be blessed with the hoped for joint success.

“I would, however, like to extend a special greeting to the Reich Chief of Health Services, Under Secretary Conti, who holds the central leadership of medical services in the civilian sector. I see in his presence not only an interest in our work themes, but the expression of his connection with the Wehrmacht Medical Service and his understanding of the special importance of the Wehrmacht in the field as well as at home. I need not emphasize that we are as one in the recognition of the necessity to assure and ease the mind of the soldier, that he need not worry about the physical well-being of the homeland as far as this is within the realm of possibility in wartime.” (_NO-922, Pros. Ex. 435._)

Again, at the Fourth Meeting of Consulting Physicians in May 1944 the defendant Karl Brandt stressed the importance of Handloser’s position, saying—

“Generaloberstabsarzt Handloser, you, a soldier and a physician at the same time, are responsible for the use and the performance of our medical officers.

* * * * *

“I believe, and this probably is the sole expectation of all concerned, that this meeting which today starts in Hohenlychen will be held for the benefit of our soldiers. The achievements to date of your physicians, Herr Generaloberstabsarzt, confirm this unequivocally, and their readiness to do their share makes all of us proud and—I may also say—confident.

* * * * *

“It is good simply to call these things by their names and to look at them as they are. This meeting is the visible expression of it—it is, it shall be, and it must be so in every respect; the consulting physicians are gathered around their medical chief. When I look at these ranks, you Generaloberstabsarzt Handloser, are to be envied; medical experts, with the best and most highly trained special knowledge, are at your disposal for care of the soldiers. In reciprocal action between yourself and your medical officers, the problem of our medical knowledge and capacity are kept alive.” (_NO-924, Pros. Ex. 437._)

This was no accolade paid to a man without power and influence. If Handloser is not responsible for the crimes committed by the medical services of the Wehrmacht, and especially of the Army and Luftwaffe, then no one is responsible.

In the number three seat we have the defendant Rostock who, as Brandt’s special deputy, was charged with the task of “centrally coordinating and directing the problems and activities of the entire Medical and Health Services” in the field of science and research. Even prior to his appointment to that position in the fall of 1943, Rostock was one of the responsible leaders of the German medical profession. In 1942 he was appointed Dean of the Medical Faculty of the University of Berlin. In the same year he became consulting surgeon to Handloser as the Army Medical Inspector. He attained the rank of Generalarzt. As Chief of the Office for Science and Research under Brandt, it was Rostock’s task to coordinate scientific research in Germany. He received reports as to the issuance of research assignments by the various agencies in Germany and determined which of such assignments should be considered “urgent”. He also served as Brandt’s alternate on the Reich Research Council.

In the number four seat we have the defendant Schroeder, who from 1 January 1944 until the end was the Chief of the Medical Service of the Luftwaffe. From 1935 until February 1940 Schroeder was Chief of Staff to his predecessor, Erich Hippke as Luftwaffe Medical Inspector. From February 1940 until January 1944 he served as Air Fleet Physician of Air Fleet 2, when he replaced Hippke as Chief of the Medical Service of the Luftwaffe. Simultaneously he was promoted to the rank of Generaloberstabsarzt. As Chief of the Medical Service of the Luftwaffe, all medical officers of the German Air Force were subordinated to him. His position and responsibility are clear and unequivocal.

In seat number five is the defendant Genzken, who, as Chief of the Medical Service of the Waffen SS, was one of the highest ranking medical officers in the SS. He joined the Nazi Party in 1926 and in 1936 he went on active duty with the SS in the Medical Office of the SS Special Service [disposal] Troops [SS Verfuegungstruppe], which subsequently became the Waffen SS. In the spring of 1937 the Medical Office of the SS was enlarged and split into two departments. Genzken was made director of the department charged with the supply of medical equipment to and the supervision of medical personnel in the concentration camps. In this capacity he was the medical adviser to the notorious Eicke, predecessor of Pohl as the commander of all concentration camps. Sachsenhausen, Dachau, Buchenwald, Mauthausen, Flossenbuerg, and Neuengamme, among others, were under the medical supervision of Genzken. Few men could have been better advised as to the systematic oppression and persecution of the hapless prisoners of these institutions.

In May 1940, Genzken became Chief of the Medical Office of the Waffen SS in the SS Operational Headquarters, with the rank of Oberfuehrer. The SS Operational Headquarters was subordinated to Gruppenfuehrer Hans Juettner and was one of the twelve main offices of the Supreme Command of the SS. While Juettner was Genzken’s military superior, his technical or medical superior was Reichsarzt SS Grawitz for whom he served as deputy on many occasions. In 1942 his position became known as Chief of the Medical Service of the Waffen SS, Division D of the SS Operational Headquarters. He attained the rank of Gruppenfuehrer in the SS and Generalleutnant of the Waffen SS [major general]. Among the offices subordinated to Genzken was that of the Chemical and Pharmaceutical Service under Blumenreuter and Hygiene under the defendant Mrugowsky. Mrugowsky was attached to Genzken’s office as a hygienist in 1940 and was at the same time Chief of the Hygiene Institute of the Waffen SS which, in turn, was subordinated to Genzken. On 1 September 1943, the Medical Service of the SS was reorganized and, among other things, Blumenreuter, Mrugowsky, and the Hygiene Institute of the Waffen SS were transferred to the Office of the Reichsarzt SS, Grawitz. Thereafter the direct subordination was to Grawitz rather than to Genzken.

And then there is the defendant Blome, Gruppenfuehrer [Major General] in the SA, Deputy Reich Health Leader, Deputy Leader of the Reich Chamber of Physicians and the National Socialist Physicians Association, Representative for the Department of Medical Study, Plenipotentiary in the Reich Research Council, and Chief of Research on Bacteriological Warfare. As the closest associate of Conti, he cannot be omitted from the list of the powerful. Conti was the highest authority in the field of civilian health administration. The decree of 28 July 1942, signed by Hitler, concerning the reorganization of the medical services, defines the position of Conti as follows:

“In the field of civilian health administration the State Secretary in the Ministry of Interior, and the Chief of the Health Administration of the Reich [Reichsgesundheitsfuehrer], Dr. Conti, is responsible for coordinated measures. For this purpose he has at his disposal the competent departments of the highest Reich authorities and their subordinate offices.” (_NO-080, Pros. Ex. 5._)

There was not a single medical question which did not reach the Reich Health Department of the Nazi Party and the Reich Chamber of Physicians, subordinated to which were all physicians in Germany, with the exception of those on active Service with the armed forces and in the SS. As a member of the Reich Research Council, Blome was personally connected with plans and enterprises involving criminal medical experimentation.

These were the responsible leaders of the medical services of Germany. Who, then, is missing from this illustrious gathering? During the course of the trial, we have frequently heard mentioned the names of Conti and Grawitz. Indeed, the defendants would have us believe that in these two men, together with Hitler and Himmler, resided the exclusive responsibility for the manifold crimes with which we are here concerned. I hardly need call attention to the fact that all are dead. All of them took their own lives rather than face the bar of justice. No one can deny that those men were, indeed, guilty. But this in no way serves to exonerate these defendants, who all played important roles in the mad scheme. It is a curious thing that not one of the defendants has pointed an accusing finger at a living man. If they are to be believed, all the guilty parties to these crimes are dead. According to them, justice must seek retribution only from the cadavers. The Luftwaffe defendants have been strangely silent as to Hippke, who, but for a belated capture, would have a prominent seat in the dock. Those defendants who worked with the dead criminals—such as Gebhardt, Mrugowsky, and Poppendick with Grawitz, and Blome with Conti—ask the Tribunal to say that their association was honorable and pure, that their work was in another field, that their masters’ crimes come as a great surprise and were never known to them. The evidence proves, however, that they not only knew of and supported these crimes, but also took a personal part in them.

In connection with the responsible positions of these defendants and most particularly of Karl Brandt and his assistant Rostock, Handloser, Schroeder, Genzken, and Blome, I wish to call the Tribunal’s attention to the decision of the Supreme Court of the United States in the case of _In re Yamashita_.[140] On 25 September 1945, Yamashita, the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands was charged with violation of the laws of war.[141] He thereafter pleaded not guilty, was tried, found guilty as charged, and sentenced to death by hanging. A petition for a writ of habeas corpus was filed with the Supreme Court purporting to show that Yamashita’s detention was unlawful for the reason, among others, that the charge preferred against him failed to charge him with a violation of the laws of war.

The charge stated that Yamashita, between 9 October 1944 and 2 September 1945, in the Philippine Islands, “while commander of armed forces of Japan at war with the United States of America and its Allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its Allies and dependencies, particularly the Philippines; and he * * * thereby violated the laws of war.” The military commission[142] which tried Yamashita found that atrocities and other high crimes had been committed by members of the Japanese Armed Forces under his command, that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers, and that during the period in question Yamashita failed to provide effective control of his troops as was required by the circumstances. The Supreme Court stated the question for their decision in the following language:

“It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognized in international law as violations of the law of war * * *. But it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by the petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit’ the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.”

The Court held that the charge was sufficient and that the law of war “plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.”

This decision is squarely in point as to the criminal responsibility of those defendants in this dock who had the power and authority to control the agents through whom these crimes were committed. It is not incumbent upon the prosecution to show that this or that defendant was familiar with all of the details of all of these experiments. Indeed, in the Yamashita case, there was no charge or proof that he had knowledge of the crimes. In the case before the International Military Tribunal, proof was submitted that the Reichsbank, of which the defendant Funk was president, had received from the SS the personal belongings of victims who had been exterminated in concentration camps. In that connection the Tribunal said in its judgment:

“Funk has protested that he did not know that the Reichsbank was receiving articles of this kind. The Tribunal is of the opinion that he either knew what was being received or was deliberately closing his eyes to what was being done.”[143]

But we need not discuss the requirement of knowledge on the facts of this case. It has been repeatedly proved that those responsible leaders of the German medical services in this dock not only knew of the systematic and criminal use of concentration camp inmates for murderous medical experiments, but also actively participated in such crimes. Can it be held that Karl Brandt had no knowledge of these crimes when he personally initiated the jaundice experiments by Dohmen in the Sachsenhausen concentration camp and the phosgene experiments of Bickenbach? Can it be found that he knew nothing of the criminal Euthanasia Program when he was charged by Hitler with its execution? Can it be said that Handloser had no knowledge when he participated in the conference of 29 December 1941 where it was decided to perform the Buchenwald typhus crimes, when reports were given on criminal experiments at meetings called and presided over by him? Was Rostock an island of ignorance when he arranged the program for and presided over the meetings at which Gebhardt and Fischer lectured on their sulfanilamide experiments, when he classified as “urgent” the criminal research of Hirt, Haagen, and Bickenbach? Did Schroeder lack knowledge when he personally requested Himmler to supply him with inmates for the sea-water experiments? Can it be found that Genzken had no knowledge of these crimes when the miserable Dr. Ding was subordinated to and received orders from him in connection with the typhus experiments in Buchenwald, when his office supplied Rascher with equipment for the freezing experiments? Was Blome insufficiently informed in the face of proof that he collaborated with Rascher in the blood coagulation experiments, issued a research assignment to him on freezing experiments and to Hirt on the gas experiments, as well as performed bacteriological warfare and poison experiments himself?

No, it was not lack of information as to the criminal program which explains the culpable failure of these men to destroy this Frankenstein’s monster. Nor was it lack of power. Can anyone doubt that Karl Brandt could have issued instructions to Handloser and Conti that doctors subordinated to them were not to experiment on concentration camp inmates? It is no excuse to say that Hitler and Himmler approved the policy and that his efforts may have failed. Certainly they approved it. But the fact is that Brandt also approved of and personally participated in the program. He was the “highest Reich authority” in the medical services, not Himmler. The medical services were Brandt’s primary function, while Himmler had a few other tasks to keep him busy, such as running the SS, the Ministry of Interior, the German Police, and the Home Army, to mention a few.

Nothing could have been easier for Handloser than to issue a general directive that officers of the Medical Services of the Wehrmacht were to keep out of concentration camps. If he could not have done so, then we must conclude that no one could have. Handloser had no peer in the military medical services. And what Handloser could have done for all the branches of the Wehrmacht, Schroeder, Genzken, and Blome could have done with respect to the Luftwaffe, the Waffen SS, and the Reich Health Department.

The conclusion is inescapable that the crimes of these responsible leaders is a hundredfold greater than that of the wretches who executed the murderous experiments in the concentration camps. Theirs was the power, the opportunity, and the duty to control and their failure is their everlasting guilt.