c. Selection from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT GEBHARDT_[161]

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_The Legal Status of the Experimental Subjects_

“Inmates of the Ravensbrueck concentration camp who had been sentenced to death by German courts martial in the General Government as members of the Polish Resistance Movement were employed as experimental subjects (in the sulfanilamide experiments).” The witnesses questioned in Court and all experimental subjects from whom the prosecution has submitted affidavits have openly professed their membership of the Resistance Movement and it must be added that some of them exercised relatively important functions in the Resistance Movement. If the legal status of the experimental subjects at the time of their activity in the Resistance Movement is examined, the result will be as follows:

LEGAL STATUS OF POLAND

The former Polish State ceased to exist as an independent subject from the point of view of international law at the latest on 28 September 1939. After the entire area of the former Polish State had been occupied by the German armies and the troops of the Soviet Union, and the Polish Government had gone into Romanian territory under pressure of the invasion of the Red Army on 17 September 1939, the two occupational powers decided to carry out a plan previously agreed upon which was to settle all matters concerning the territory of the former Polish State without interference by any other powers. This was brought about by the German-Soviet Boundary and Friendship Pact of 28 September 1939. (_Gebhardt 14, Gebhardt Ex. 13._) I refer to the contents of the pact for particulars. It was on this day, at the very latest, that Poland ceased to exist as a sovereign state and as bearer of rights and duties. Due to war, the former Polish State ceased to exist as a state and therewith as a subject from the point of view of international law.

The territory of the former Polish State, insofar as it fell within the sphere of Soviet interests, became part of the U. S. S. R., to which it still belongs today.

The Polish territory, which fell into the German sphere of interests and which is designated in detail in the Supplementary Protocol to the German-Soviet Boundary and Friendship Pact, became either part of the German Reich or—and this concerned the larger part of the area—was made into an independent borderland of the German Reich under the designation General Government. The constitutional laws governing this territory were based on the Decree for the Administration of the Occupied Polish Territory issued on 12 October 1939 by the Fuehrer and Reich Chancellor. I have presented the decree to the Tribunal as Document Gebhardt 15, Gebhardt Exhibit 14. Article 4 of this decree states that Polish law was to continue to be valid insofar as it was not at variance with the taking over of the administration by the German Reich. Article 5 gives the Governor General the right to issue laws by ordinance for the territory under his administration.

Corresponding to the generally acknowledged principles of international law the ordinances issued by the Governor General were binding for the population of this territory. This is especially true of the Ordinance for Combating Deeds of Violence in the General Government, which was issued on 31 October 1939 (Ordinance Gazette for the General Government, page 10), and which also laid the foundation for the competence of the courts martial. This ordinance had become necessary because the military government, which had been active until 26 October 1939, ceased to exist when the Fuehrer Decree of 12 October 1939 became valid.

In this connection, the following reply must be made to the objection of the prosecution in their final plea on the morning of the 14th.

First: No Polish Government was in existence when these experimental subjects were working for the Resistance Movement in 1940 and 1941. The Polish Government had ceased to exist as an independent subject under international law. The government in exile in London under General Sikorski and the government in Lublin were only subsequently recognized by the Western Allies.

Second: When the experimental subjects were working for the Resistance Movement in 1940, no Polish Army in combat existed.

Third: The prosecution seems to have endeavored to express that this Military Tribunal should not primarily apply territorial penal law but the principles of international law. For this very reason the prosecution pointed out that the jurisdiction and the judicial authority within the General Government were the consequence of an aggressive war and could not, therefore, be legally recognized. This concept does not apply. It must first be pointed out that the principles of international law, which have the function to regulate legal issues during war, make no distinction between an aggressive war, a defensive war, or a justified war. This is particularly stated in the Fourth Hague Convention of 1907, the so-called Hague Land Warfare Convention.

The objection of the prosecution is not justified for another reason. The evidence before the IMT showed that the attack on Poland was carried out by Germany in at least the same manner as it was carried out by the U.S.S.R., and that this becomes quite evident from the contents of the German-Soviet secret treaty of 23 August 1939. Nevertheless the U.S.A. did not hesitate to recognize the territorial claims made by the U.S.S.R. in the area of the former Polish State. This recognition took place _de facto_ as well as _de jure_ during the Yalta Conference in February 1945 and the Potsdam Conference on 2 August 1945.

The prosecution cannot therefore object today to this state of affairs as far as the legal issues arising from this attack are concerned.

The Ordinance for Combating Acts of Violence in the General Government and the introduction of the courts martial connected with it would, by the way, have been permissible, even if though the former Polish State had not ceased to exist as a subject in the realm of international law. Military occupation of foreign states (_occupatio bellica_), too, gives the occupying power the right to take all the measures necessary for the maintenance of order and safety. It is a generally acknowledged legal conception that in this case the occupying power takes over the power of the conquered state, not as its deputy, but rather by authority of its own laws guaranteed by international law. The right is expressly acknowledged in the third section of the Hague Convention for Land Warfare [Section III, Annex to the Convention]. There can be no doubt that the introduction of courts martial is one of these rights of the occupying power. In fact it seems inconceivable that an occupying power should not be allowed to take measures for the effective combating of a resistance movement, whose sole and openly admitted purpose it was to undermine and destroy the authority of the occupying power and the safety of the occupation troops. The right to do this can be contested even less in our case, since with the outbreak of the German-Soviet war, the territory of the former General Government became the largest military transit area which has ever existed in the history of war. The methods by which the Polish Resistance Movement tried to attain its goals do not need to be examined here in detail. It is sufficient to point out that the Resistance Movement was in a position to interfere to a considerable extent with German Army reinforcements against the Red Army; this interference took the form of blasting of bridges, transmission of important military information, etc. The Polish women used for the sulfanilamide experiments were members of this Resistance Movement and they supported it wherever they could. However much we respect the courage and patriotism of these women, we cannot refrain from emphasizing the fact that they violated laws which at that time were binding for them. This violation gave the occupation power the right to impose adequate punishment upon them. It seems unthinkable that the members of a resistance movement such as the Polish one would not have been sentenced to death during the war for their resistance activities by any other state which found itself in a position similar to that of Germany at that time. Latest developments show that the occupation powers in Germany now do not hesitate to impose the most severe penalties in similar cases.

For example, the American Military Government for Germany in its Ordinance No. 1, which was issued to insure the safety of the Allied Armed Forces and to reestablish public order in the territory occupied by them, lists, among others, the following acts as crimes punishable by death:

Communication of information which may be dangerous to the security or property of the Allied Forces, or unauthorized possession of such information without promptly reporting it; and unauthorized communication by code or cipher;

Interference with transportation or communication or the operation of any public service or utility;

Any other violation of the laws of war or act in aid of the enemy or endangering the security of the Allied Forces.

A comparison of these regulations with the contents of the court martial regulations of the Governor General for the Occupied Polish Territories, presented in Document Book II for the defendant Gebhardt, shows clearly that here generally the same facts were declared to be punishable with the death sentence.

In order to exclude any doubts with regard to the legal status of the experimental subjects, it may be pointed out in conclusion that the members of the Polish Resistance Movements, at least when the prisoners belonged to these movements, did not fulfill the conditions of Article I of the Hague Convention for Land Warfare of 1907 [Section I, Chapter I, Annex to the Convention] concerning militia and voluntary corps not affiliated with the army and having a certain military organization. The Polish Resistance Movement at that time (1) had no leader who was ostensibly at its head and responsible for the conduct of the members; (2) it wore no particular badge recognizable from a distance; (3) it did not wear its arms openly; and finally, (4) in its conduct of war it disregarded the laws and practices of war. In view of these facts the members of the Resistance Movement could not have been treated as prisoners of war even if at that time a Polish Army had still been in the field. In view of the fact that the prisoners in question were women serving in the communications and espionage branches of the Resistance Movement, this possibility was eliminated from the very beginning.

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

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

[160] [Ibid.]

[161] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.

E. Voluntary Participation of Experimental Subjects

a. Introduction

There was considerable contention in the case as to whether an inmate of a German concentration camp could give his voluntary consent to participate in medical experiments. The prosecution argumentation on this point appears in the opening statement on pages 27-74 and in the closing statement. The applicable extract from the closing statement of the prosecution appears below on pages 980 to 983. Selections from the defense argumentation on this point have been taken from the closing brief for the defendant Karl Brandt and from the final plea for the defendant Ruff. These appear below on pages 983 to 992. The following selections from the testimony have been taken from the evidence on this point: Extracts from the direct examination of the prosecution witness Dr. Eugen Kogon, and extracts from the cross-examination and redirect examination of the prosecution’s expert witness Dr. Andrew C. Ivy. These extracts appear below on pages 993 to 1004.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION_[162]

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* * * It is the most fundamental tenet of medical ethics and human decency that the subjects volunteer for the experiment after being informed of its nature and hazards. This is a clear dividing line between the criminal and what may be noncriminal. If the experimental subjects cannot be said to have volunteered, then the inquiry need proceed no further. Such is the simplicity of this case.

What then is a volunteer? If one has a fertile imagination, suppositious cases might be put which would require a somewhat refined judgment. No such problem faces this Tribunal. The proof is overwhelming that there was never the slightest pretext of using volunteers. It was for the very reason that volunteers could not be expected to undergo the murderous experiments which are the subject of this trial that these defendants turned to the inexhaustible pool of miserable and oppressed prisoners in the concentration camps. Can anyone seriously believe that Poles, Jews, and Russians, or even Germans, voluntarily submitted themselves to the tortures of the decompression chamber and freezing basin in Dachau, the poison gas chamber in Natzweiler, or the sterilization X-ray machines of Auschwitz? Is it to be held that the Polish girls in Ravensbrueck gave their unfettered consent to be mutilated and killed for the glory of the Third Reich? Was the miserable gypsy who assaulted the defendant Beiglboeck in this very courtroom a voluntary participant in the sea-water experiments? Did the hundreds of victims of the murderous typhus stations in Buchenwald and Natzweiler by any stretch of the imagination consent to those experiments? The preponderance of the proof leaves no doubt whatever as to the answer to these questions. The testimony of experimental subjects, eyewitnesses, and the documents of the defendant’s own making, establish beyond a shadow of a doubt that these experimental subjects were nonvolunteers in every sense of the word.

This fact is not seriously denied by the defendants. Most of them who performed the experiments themselves have admitted that they never so much as asked the subjects whether they were volunteering for the experiments. As to the legal and moral necessity for consent, the defendants pay theoretical lip service, while at the same time leaving the back door ajar for a hasty retreat. Thus, it is said that the totalitarian “State” assumed the responsibility for the designation of the experimental subjects, and under such circumstances the men who planned, ordered, performed, or otherwise participated in the experiment cannot be held criminally responsible even though nonvolunteers were tortured and killed as a result. This was perhaps brought out most clearly as a result of questions put to the defendant Karl Brandt by the Tribunal. When asked his view of an experiment, which was assumed to have been of highest military necessity and of an involuntary character with resultant deaths, Brandt replied:

“In this case I am of the opinion that, considering the circumstances of the situation of the war, this state institution, which has laid down the importance of the interest of the state, at the same time takes the responsibility away from the physician if such an experiment ends fatally, and such responsibility must then be borne by the state.” (_Tr. p. 2567._)

Further questioning elicited the opinion that the only man possibly responsible in this suppositious case was Himmler, who had the power of life and death over concentration camp inmates, even though the experiment may have been ordered, for example, by the Chief of the Medical Service of the Luftwaffe and executed by doctors subordinated to him. Most of the other defendants took a similar position, that they had no responsibility in the selection of the experimental subjects.

This defense is, in the view of the prosecution, completely spurious. The use of involuntary subjects in a medical experiment is a crime, and if it results in death it is the crime of murder. Any party to the experiment is guilty of murder and that guilt cannot be escaped by having a third person supply the victims. The person planning, ordering, supporting, or executing the experiment is under a duty, both moral and legal, to see to it that the experiment is properly performed. This duty cannot be delegated. It is surely incumbent on the doctor performing the experiment to satisfy himself that the subjects volunteered after having been informed of the nature and hazards of the experiment. If they are not volunteers, it is his duty to report to his superiors and discontinue the experiment. These defendants have competed with each other in feigning complete ignorance about the consent of the experimental victims. They knew, as the evidence proves, that the miserable inmates did not volunteer to be tortured and killed. But even assuming the impossible, that they did not know, it is their damnation not their exoneration. Knowledge could have been obtained by the simple expedient of asking the subjects. The duty of inquiry could not be clearer and cannot be avoided by such lame excuses as “I understood they were volunteers,” or, “Himmler assured me they were volunteers.”

In this connection, it should never be lost sight of that these experiments were performed in concentration camps on concentration camp inmates. However little, some of these defendants say they knew of the lawless jungles which were concentration camps, where violent death, torture, and starvation made up the daily life of the inmates, they at least knew that they were places of terror where all persons opposed to the Nazi government were imprisoned without trial, where Jews and Poles and other so-called “racial inferiors” were incarcerated for no crime whatever, unless their race or religion be a crime. These simple facts were known during the war to people all over the world. How much greater then was the duty of these defendants to determine very carefully the voluntary character of these experimental subjects who were so conveniently available. True it is that these defendants are not charged with responsibility for the manifold complex of crimes which made up the concentration camp system. But it cannot be held that they could enter the gates of the Inferno and say in effect: “Bring forward the subjects. I see no evil; I hear no evil; I speak no evil.” They asked no questions. They did not inquire of the inmates as to such details as consent, nationality, whether a trial had been held, what crime had been committed, and the like. They did not because they knew that the wretched inmates did not volunteer for their experiments and were not expected to volunteer. They embraced the Nazi doctrines and the Nazi way of life. The things these defendants did were the result of the noxious merger of German militarism and Nazi racial objectives. When, in the face of a critical shortage of typhus vaccines to protect the Wehrmacht in its Eastern invasions, Handloser and his cohorts decided that animal experimentation was too slow, the inmates of Buchenwald were sacrificed by the hundreds to test new vaccines. When Schroeder wanted to determine the limit of human tolerance of sea-water, he trod the path well-worn by the Luftwaffe to Dachau and got forty gypsies. These defendants with their eyes open used the oppressed and persecuted victims of the Nazi regime to wring from their wretched and unwilling bodies a drop of scientific information at a cost of death, torture, mutilation, and permanent disability. For these palpable crimes justice demands stern retribution.

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