d. Evidence

_Testimony_ Page Extracts from the testimony of defendant Karl Brandt 970 Extract from the testimony of defendant Rose 973

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[156]

_EXAMINATION_

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JUDGE SEBRING: * * * Witness, for the sake of clarification, let us assume that it would have been highly important to the Wehrmacht to ascertain, as a matter of fact, how long a human being could withstand exposure to cold before succumbing to the effects of it. Do you understand that? Let’s assume secondly that human subjects were selected for such freezing experiments without their consent. Let’s assume thirdly that such involuntary human subjects were subjected to the experiments and died as a direct or indirect result thereof. Now, would you be good enough to inform the Tribunal what your view of such an experiment is—either from the legal or from the ethical point of view?

DEFENDANT KARL BRANDT: I must repeat once more, in order to make sure that I understood you correctly. When assigning the experiment the following things are assumed: highest military necessity, involuntary nature of the experiment, and the danger of the experiment with eventual fatality. In this case I am of the opinion that, when considering the circumstances of the situation of the war, this state institution which has laid down the importance in the interest of the state at the same time takes the responsibility away from the physician if such an experiment ends fatally and such a responsibility has to be taken by the state.

Q. Now, does it take away that responsibility from the physician, in your view, or does it share that responsibility jointly with the physician, in your view?

A. In my view, this responsibility is taken away from the physician because, from that moment on, the physician is merely an instrument maybe in the same sense as in the case of an officer who receives an order at the front and leads a group of three or four soldiers into a position where they are certain to meet death. That position, if I apply it to German conditions during the war, is in principle the same. I don’t believe that the physician as such, from his ethical and moral feelings, would carry out such an experiment without this assurance of the authoritarian state which gives him a formal and legal assurance on one side and, on the other side, gives him the order for the execution. Naturally, in this case, it is a theoretical question since I cannot survey the position in the case of the freezing experiment. I don’t know how this assurance was given and how the order was given. Basically, I want to differentiate between the order for an experiment which arises from medical needs as such and where, under the circumstances, the state only has a secondary interest on the basis of medical initiatives, and I would differentiate between the reverse state of affairs where the state uses medical activities.

Q. The Tribunal has one further question of interest.

In your view, would an order which authorized or directed a subordinate medical officer or subordinate medical group to carry on a certain medical experiment—let us assume for the moment this freezing experiment—we have then a general order, let us assume, directing a certain institute to carry on freezing experiments without delineating or specifying in detail the exact course of those experiments. Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death to the subject?

A. May I have your last sentence repeated, please? This question is extremely difficult to answer. The order given in such a case has to be taken into consideration. May I, perhaps, answer with an example of such an order. If Himmler gives an order to a Dr. “X” and tells him to carry out a certain experiment, then it is possible that Dr. “X” did not wish to comply with this order. In such a case, however, Dr. “X” will not have overlooked the importance of the experiment itself, the same way as the lieutenant who received a certain military order—and we are here concerned with a military order—does not overlook that he would have to hold out with a group of eight men at a bridgehead and that this would end in his death. In spite of that, this officer with his eight men to whom he passed this order on would meet their death at that position. So this physician “X” who received this order from Himmler would under the circumstances have to carry out an experiment without being able to judge the validity of the reasons which prompted a central agency.

If a physician had not carried out that experiment, he would have got into a position where he would be called to account if he had not carried out that experiment. In this case, and there we have to consider the authoritarian nature of our state, the personal feeling and the feeling of a special professional, ethical obligation has to subordinate itself to the totalitarian nature of the war.

I must say once more, these are theoretical assumptions which I am expressing here. At the same time I could express how difficult such decisions are if I refer to an example which recently was quoted here, and I mean the eight hundred inmates in a prison in America who were infected with malaria. I don’t want to refer to this example in order to justify the experiments which are under indictment here, but I want to express that the question of the importance of an experiment is, and remains, basically of decisive importance. Even there a certain number of fatalities had to be expected from the start when infecting eight hundred people with malaria.

The voluntary attitude which an inmate adopts and with which an inmate makes himself available is a relatively voluntary agreement. I don’t think it would be the same if one were to receive a voluntary agreement from people who are present here. One has to consider the nature of the voluntary agreement. In my opinion, this round figure of eight hundred speaks against the voluntary agreement of all. I would assume that if it was seven hundred and thirty-five or seven hundred and forty, it would be different, but the round figure of eight hundred seems to indicate that there was a certain order for the experiment before the beginning of the experiment, and these experiments, too, were directed from the point of view of a superior state interest, and this superior state interest, at the same time, takes over the responsibility for the result of the experiment with reference to the experimental subject. For responsibility in a medical sense cannot be assumed at all since even a negative series of experiments speaks against the urgency and necessity of these experiments; and particularly when answering the question about voluntary or involuntary, dangerous or nondangerous natures, it is very difficult and almost impossible to say basically with reference to experiments that experiments on human beings, taking all these things into consideration, are a crime or are not a crime. The question can only be judged when over and above the expected result experiments are still continued. If a result has been established and further experiments on human beings are then carried out, they are not important, and the experiment which is not important is only a dilettante experiment. In that case I would from the start assume the word “criminal,” but when dealing with important experiments, it is necessary to take into consideration all the circumstances which played a part at that time; that is to say, the important experiments, from the moment a result is achieved, become unimportant. From that moment on, in my opinion, the experiment is criminal. Therefore, that when speaking about human experiments at all, one must put the results at the disposal of the state—not only to one state but internationally—so that experiments which are carried out in Russia and which had shown results would not be continued in other countries.

With reference to freezing experiments, I can only say that in a certain form, without saying “criminal” or “not criminal,” they showed their value. The indication for that is that the results in the American Air Force were considered as something extraordinary and helped the American Air Force to gain years, and I think that these experiments would also be of use in mines, where a number of fatalities occur because of freezing. If you consider the freezing experiments in that light, the victims in effect are tragic and are to be regretted, but with reference to subsequent periods these victims are a real sacrifice, for hundreds, or maybe thousands of people might save or prolong their lives because of it.

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Q. Dr. Brandt, is it not true that in any military organization, even one of an authoritarian state, there comes a point beyond which the officer receiving an order subjects himself to individual responsibility, at least in the eyes of civilized society, for carrying out any military orders, particularly if the order is unlawful or transcends the limit of extreme military necessity?

A. There was a general law stating that an officer does not have to carry out an order which he realizes is a crime, but the question with reference to these various experiments is whether the man concerned can realize that what he is doing is a crime. If he can realize it, then, in my opinion, he cannot comply with the order.

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EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE[157]

_CROSS-EXAMINATION_

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MR. MCHANEY: And you suggested and asked him [defendant Mrugowsky] to carry out experiments with Copenhagen vaccine in the typhus experiments in Buchenwald, didn’t you?

DEFENDANT ROSE: I was asking whether there was still a possibility of carrying out such a series of experiments. That is quite understandable, considering the situation, because one can see from my report of 29 May 1943, that this seemed to constitute a considerable advance on the experiments already made on animals. I knew that such experiments had been carried out earlier, although I basically objected to these experiments. This institution had been set up in Germany and was approved by the state and covered by the state. At that moment I was in a position which might correspond to that of a lawyer who is, perhaps, a basic opponent of capital punishment. On occasions when he is dealing with leading members of the government or with lawyers during public congresses or meetings, he will do everything in his power to maintain his opinion on the subject and have it put into effect. If, however, he does not succeed, he stays in his profession and in his environment in spite of this. Under certain circumstances he may perhaps even be forced to pronounce such a death sentence himself, although he is basically an opponent of the principle. Of course, it does not go as far as this in my case. I am only in touch with people of whom I assume that they somehow are included in the official channels of such an institution, which I disapprove of basically, and which I want to see removed.

Q. Professor, six persons died in this experiment with the Copenhagen vaccine, didn’t they?

A. Yes. They were six people who were furnished by the Reich Criminal Police Office through ordinary channels as determined by competent agencies.

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

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

[151] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11220-11244.

[152] Defendant in case of United States _vs._ Ernst von Weizsaecker, et al. See Vols. XII, XIII, XIV.

[153] United States _vs._ Josef Altstoetter, et al. See Vol. III.

[154] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 10922-10941.

[155] Trial of the Major War Criminals, vol. XVII, pp. 458-494, Nuremberg, 1948.

[156] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. 1947, pp. 2301-2661.

[157] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 Apr. 1947, pp. 6081-6484.

D. Status of Occupied Poland Under International Law

a. Introduction

The defense argued that Poland lost its sovereignty as a result of the complete occupation of Polish territory and the cessation of Polish military resistance in September 1939 and held that in consequence Germany could treat Polish nationals according to German law. An extract from the closing statement of the prosecution on this point appears on page 975. The argument, that international law concerning belligerent occupation was thus not applicable to the treatment of Polish nationals, appears in the extracts from the final plea for defendant Gebhardt on pages 976 to 979.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION_[158]

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In the case of some of the defendants, and this is especially true with respect to Gebhardt, Fischer, and Oberheuser in connection with the sulfanilamide experiments, it is to be expected that the argument will be made that crimes against Polish, and perhaps also Czech nationals, do not constitute war crimes within the meaning of Control Council Law No. 10. This argument is based upon the proposition that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the German Reich, and therefore Germany had the authority to deal with the occupied countries as though they were part of Germany. Thus, the defense placed in evidence the Russo-German Boundary and Friendship Treaty of 28 September 1939 as well as certain German decrees concerning the administration of occupied Poland. (_Gebhardt 14, Gebhardt Ex. 13_; _Gebhardt 15, Gebhardt Ex. 14_; _Gebhardt 16, Gebhardt Ex. 15_.) Without stopping to argue the point that that part of Poland administered by the so-called General Government, from which the Polish subjects for the sulfanilamide experiments came, was never incorporated into the Reich, it will be sufficient to point out that this argument was disposed of by the International Military Tribunal. In its judgment, the following was said:[159]

“In the view of the Tribunal, it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939.”

The argument also has no validity with respect to Czech nationals. The International Military Tribunal said that:

“As to war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.”[160]

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