d. Evidence
_Testimony_ Page Extracts from the testimony of prosecution witness Eugen Kogon 993 Extracts from the testimony of prosecution expert witness Dr. 994 Andrew C. Ivy
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS EUGEN KOGON[165]
_DIRECT EXAMINATION_
* * * * *
MR. MCHANEY: Before we go into the details of the typhus experiments, I would like to ask you if you know anything about the manner in which subjects were selected for the experiments which you have mentioned and which took place in Buchenwald?
WITNESS KOGON: The selection of experimental subjects was not the same at different times. In the very first period the inmates of the camp were called upon to volunteer. They were told that it was a harmless affair; that the people would get additional food. After one or two experiments it became impossible to get any volunteers whatever. From then on, Doctor Ding asked the camp physician or the SS camp commandant to select the suitable persons for the experiments. He had no special directives for this. The camp administration chose people arbitrarily from among the prisoners, whether they were criminals, or political prisoners, or homosexuals. Intrigue among the prisoners themselves also played a role in the selection, and occasionally people came for whom there was no special reason, but they came into the experiments. From the fall of 1943, approximately, the camp leaders did not want to keep the responsibility for the selection of experimental subjects. Doctor Ding himself no longer wished to have verbal instructions from Mrugowsky to carry out the experiments, but he demanded written orders. For this purpose he approached Mrugowsky with the request that the Reich Leader SS should appoint his own people for the experiments. SS Gruppenfuehrer Nebe of the Reich Criminal Police Office in Berlin then, according to a directive from Himmler which I saw, ordered that only those people were to be used who had at least a ten-year sentence to work out. Then, the officials of the Reich Criminal Police Office in Berlin twice selected 110 and 99 people in Buchenwald, who were made available for the experiments. They were exclusively criminals with a previous record. In the last period, people were selected from various concentration camps and prisons in Germany. Transports came to Buchenwald with these people. In addition to this, political prisoners from the camp itself were almost always included in these series of experiments, either because they were inconvenient to the SS in some way or because they were victims of camp intrigues.
Q. Were all of these experimental subjects condemned to death, who were experimented on in Block 46?
A. I do not know of a single case in which anyone came to the experimental station in Block 46 because he had been condemned to death. Once in the case of four Russian prisoners of war, it was claimed that they were to be shot, but there was no judgment, no sentence. They belonged to the category of Russian prisoners of war, of whom about 9,500 were shot, hanged, or strangled in Buchenwald.
Q. Were any special considerations or favors granted to the experimental subjects who survived these experiments?
A. During the first two or three weeks before the experiments were carried out, the experimental subjects received better food in order to get them into the condition of a normal German soldier. Apart from that, none of the prisoners who survived received any advantages, and they were never promised any such thing.
Q. Was an effort made to pick experimental subjects who were in good physical health, that is, comparable to a Wehrmacht soldier?
A. The condition did exist, and as far as was compatible with the other conditions of selection, it was fulfilled.
* * * * *
Q. Mr. Kogon, at the conclusion of yesterday’s session you had explained to us the manner in which experimental subjects were selected for the medical experiments in the Buchenwald camp. Will you tell the Tribunal whether any non-German nationals were experimented on?
A. Among the experimental subjects who had been selected for Block 46, there were not only Germans but also Poles, Russians, and Frenchmen, particularly during the last years.
Q. Were there any prisoners of war experimented on in Block 46 to your knowledge?
A. Yes.
* * * * *
EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS DR. ANDREW C. IVY[166]
_CROSS-EXAMINATION_
* * * * *
DR. SERVATIUS (Attorney for defendant Karl Brandt):
Witness, yesterday you testified that voluntary consent is the first prerequisite for human experimentation. Previously you had said that you yourself had been reluctant to apply for volunteers. Is that so?
WITNESS DR. IVY: No.
Q. Didn’t you say just now that you didn’t want to ask your students to volunteer but left that to other agencies so that your authority might not constitute some form of coercion?
A. Yes, that is insofar as my personal direct request to the individual is concerned, I thought, because of my position as a professor, it might unduly influence the student to say yes.
Q. You were probably of the opinion that your authority might persuade him to do something that he otherwise would not do.
A. Yes—through individual contact.
Q. I say, Professor, don’t you know that in general the volunteer aspect of the person’s consent has been under suspicion?
A. I don’t understand that question. Will you repeat it?
Q. Is it not so that in medical circles and also in public circles these declarations of voluntary consent are regarded with a certain amount of suspicion; that it is doubted whether the person actually did volunteer?
A. Can you be more specific?
Q. In your commission you probably debated how the volunteers should be contacted; is that not so?
A. Yes.
Q. On this occasion was there no discussion of the question that you should assure yourself that no coercion was being exercised, or that the particular situation in which the person found himself who applied was being exploited?
A. Yes. I was concerned with that question.
Q. There were discussions about that?
A. Not necessarily with others, but there was always consideration of that in my own mind.
Q. Witness, a number of documents were submitted yesterday, Friday, from which it was to be seen that volunteers did volunteer, for instance eight hundred or more prisoners applied for a malaria experiment[167]; and there was a radio report; all of these persons had a motive for volunteering. What are the motives of a prisoner that persuade him to volunteer?
A. These prisoners said they volunteered in order to help people who might have malaria.
Q. In this report the individual persons were asked, five or six of them were—one says that he volunteered because he is condemned to life imprisonment, and he has applied to oblige the army. Another says that he is doing it because his brother is a soldier at the front and has malaria. And another one says—two of my brothers in the army had malaria; and a third one says in the last war—
MR. HARDY: Dr. Servatius refers to Document NO-3450, Prosecution Exhibit 519 for identification, and I request that he supply the passages so that Dr. Ivy can properly testify.
DR. SERVATIUS: Witness, from this radio report I shall read the answers of the experimental subjects to you. One Mr. Quail says: “I expect, Captain Jones, that these men have many reasons for their volunteering for this war.”
CAPTAIN JONES: “Yes, they have. Many have sons and brothers in the armed services, others have other patriotic motives, but I am not the one to tell about them.”
QUALL: “I get the point.”
CAPTAIN JONES: “With the permission of Warden Rangen we are going to talk to several of these volunteers right now. Here is a man who is older than some of the others. What is your name?”
JOHNSON: “I am George Johnson, number so and so.”
QUALL: “Johnson, I have heard you have a pretty high fever as a result of these tests.”
JOHNSON: “That is right; at one time my temperature was 108 degrees.”
QUALL: “108 degrees, and you are here to tell the story.”
JONES: “What was your main reason for volunteering for these tests?”
JOHNSON: “I served in the U. S. Army during the First World War, and here, by going through with these tests, I helped some of my buddies in the war just ended.”
QUALL: “Thanks, Johnson. Now, here is Charles Eirtz, number so and so.”
EIRTZ: “My brother was killed in the crossing of the Saar [Sarre] River; that made up my mind for me; we weren’t being shot at here; it was the least we could do.”
QUALL: “And here is George Storm; George Storm, number so and so.”
STORM: “Two of my brothers in the service caught malaria. If I can help the Army, I can help my brothers.”
QUALL: “Here is a man who is one of the many inmate nurses helping out in the war. What is your name?”
LEOPOLD: “Nathan Leopold, number so and so. I was a malaria volunteer, and now I am acting as a nurse.”
QUALL: “How do most of the patients react under these tests?”
LEOPOLD: “All the men are good soldiers; their morale is high.”
QUALL: “Now, two inmates who are no strangers to malaria.”
WALKER: “My name is George Walker, number so and so, and my nephew is a malaria patient in an Army hospital.”
MCCORMACK: “I am James McCormack, number so and so. My brother is in the Army, too. If these tests will help cure him of malaria, it will all be worth while.”
QUALL: “Medical officers are particularly interested in this next case. Your name?”
NORMAN: “Al Norman, number so and so.”
QUALL: “Why is your case unusual, Norman?”
NORMAN: “Because I have had five relapses since I first contracted malaria; that is the highest number any patient had.”
I shall stop reading. I believe this gives the general impression. Is it correct that all of them are giving idealistic reasons as the motive?
MR. HARDY: Prior to the question I suggest that the document be handed to Dr. Ivy, if he wishes to refer to other sections of it in his answer.
DR. SERVATIUS: I shall do so immediately; however, I have one question first. Are these not all idealistic points of view as the person’s motive?
WITNESS DR. IVY: Yes. On the basis of my discussions with people who observed these experiments at Stateville, Illinois, the idealistic motivation of this group was very high. As a matter of fact, the effect of this public service rendered by these prisoners is being followed up to see whether or not it has special reformative value, and up to the present time this question indicates that this public service has been of great reformative value, in that the incidence of return to criminality under parole is markedly decreased.
Q. Do you know Nathan Leopold, or do you know who he is?
A. Yes.
Q. Is it true that he was condemned to fifteen years in the penitentiary for murder?
A. To much more than that.
Q. Do you think he is the right person to give an opinion regarding the high morale status of the inmates of a penitentiary?
A. He can never expect to get out of the penitentiary, and I see no reason why he should not express himself, without any duress or coercion, accurately and as he feels.
Q. I will show you this report, and please ascertain if you have any remarks to make about it.
A. No, I have none.
Q. The idealistic points of view are associated with the state of war, are they not, aside from the last one?
A. No, I do not agree, because if any coercion were brought to bear upon these prisoners to serve in medical experiments, that would soon—within a week—come to the attention of the newspaper reporters and would appear on the front page of every paper—most every paper in the United States.
Q. I should like to tell you again what Jones says here. He says: “Others have patriotic motives * * * many have sons and brothers in the armed services.” Captain Jones gives that as the main reason. And then other individuals are brought up who make statements in the same sense to the same effect. Is that not so?
A. I believe that is entirely reasonable; because an individual is a prisoner in a penitentiary is no reason why he should not be patriotic or love his country.
Q. Perhaps you will admit that no one would give that as his motive for helping before a German de-Nazification court, namely, that he wanted to help the army.
A. I did not get the question. Will you please repeat it?
Q. Never mind. Now, Witness, of the experiments we have here, none of these volunteers were outside the penitentiary; now, why did not persons outside the penitentiary volunteer in the malaria experiments: businessmen or teachers, for example? Because we must assume that not only inmates of penitentiaries have ideals.
A. As I explained yesterday, conscientious objectors were used, and prisoners were used, instead of teachers and businessmen because those individuals had no other duties to perform. Their time was fully available for purposes of experimentation.
Q. Is it not an evil to carry out experiments?
A. No.
Q. You don’t think so?
A. It is not an evil to carry out experiments.
Q. But isn’t it an evil to have to go through an experiment as an experimental subject?
A. I should say not. I have served myself as an experimental subject many times, and I do not consider it an evil.
Q. Don’t you think it is very unpleasant to become infected with malaria, to have fevers, and other undesirable symptoms of that sort?
A. Yes. It is unpleasant, but not an evil.
Q. Perhaps we don’t understand each other. You don’t want to say it is a pleasure to have malaria?
A. No. It is not a pleasure.
Q. Is it not a very unpleasant and serious disease that lasts for many years?
A. It is unpleasant, yes.
Q. If all these persons apply for idealistic reasons, why are they offered recompense?
A. I suppose it is to serve as a small reward for the unpleasantness of the experience.
Q. Don’t you believe that the money was the motive for many of them—a hundred dollars?
A. That is rather small. From the point of view of prisoners in the penitentiary in the United States, a hundred dollars isn’t much money.
Q. For a prisoner that would be quite a lot of money, it seems to me, for someone at liberty it is not so much.
A. No. Our prisoners in the penitentiary in the United States, when they work in factories in the prisons, receive pecuniary compensation for that work.
Q. I believe that is so throughout the world.
A. That is put in a trust fund for them to use when they get out.
Q. Do you think that the money is sufficient recompense or compensation for what the experimental subject has to go through?
A. I should not consider it so, and I don’t believe that any of the prisoners did. As a matter of fact, I was told that some of them would not accept the money.
Q. If one declares oneself to be a volunteer, must one not weigh the advantages against the disadvantages?
A. I believe so.
Q. The disadvantage here is the risk of a serious disease, the advantage is fifty or a hundred dollars.
A. I should say the advantage is being able to serve for the good of humanity.
Q. For what reason was the money not paid immediately, but in two payments? So far as I remember from a document yesterday, the hundred dollars was paid as follows: fifty dollars after the first month, and the other fifty after one year. In other words, a prisoner has to do his job first. Now, why was that so?
A. I presume that that is just the common way of doing business in the United States when an agreement is involved. I presume the lawyers had something to do with that.
Q. Was the reason not this: that the prisoner would lose his enthusiasm for the experiment and would cease to cooperate? Could that have been the reason for being a little circumspect in the payment?
A. I doubt that.
Q. Do you know of a case where the experimental subject did not wish to continue the experiment?
A. That has not been my experience. And according to the response that I got to that question when I put it to Dr. Irving, he said that no one expressed a desire to withdraw at any time.
Q. Professor, I have seen a document on experiments in hunger that were carried out on conscientious objectors. That appeared in a periodical. It is described how these conscientious objectors went through considerable unpleasantness and did not want to continue the experiment. They kept their promise only at great effort. Is that known to you?
MR. HARDY: I suggest that counsel refer to the document that he is talking about at this time and make it available for Dr. Ivy, or make the facts available, the particular data, so that Dr. Ivy will be fully aware of the circumstances.
PRESIDING JUDGE BEALS: Does counsel have a document which he can make available? Then he will use it.
DR. SERVATIUS: I have only one copy in English here. (Presented to witness.) I shall have to find the passage I am referring to.
I can’t seem to find it. This is a long document and somewhere there is the statement that the experimental subjects have to summon all their forces to remain in the experiment. However, I shall drop the subject for the moment. Witness, is there not another inducement that persuades prisoners to volunteer for experiments? Is not the prospect of pardon or other advantages the reason for applying?
WITNESS DR. IVY: When these malaria experiments started, that prospect was not held out to the prisoners, hence the possibility of a reduction in sentence, in being placed on parole sooner than otherwise, was not a prospect. However, since some of these malaria experiments have been terminated, a reduction of sentences in addition to that allowed for ordinary “good behavior” has been granted by the parole board. For that reason Governor Green of the State of Illinois appointed a committee with me as chairman to consider this question which you have in mind: How much reduction of sentence can be allowed in such instances so that the reduction in sentence will not be great enough to exert undue influence or constitute duress in obtaining volunteers? I have my conclusions ready and can read them to you, if you desire to hear them.
Q. Please do so. May I ask when this committee was formed?
A. The formation of the committee, according to the best of my recollection, occurred in December 1946, when the prisoners with indeterminate sentences were up for consideration for parole. This was the first time the question of reduction in sentence came up.
Q. One more question, Witness. Did the formation of this committee have anything to do with the fact that this trial is going on, or with the fact that this malaria case was published in Life magazine and that it was explicitly stated that the experimental subjects were receiving no compensation, no pardon, reduction of sentence? Is there any connection between those things?
A. There is no connection between the appointment of this committee and this trial, for this reason, that there is a division of opinion regarding the work that the parole boards do. Some believe that the parole boards are too soft; others believe that they are too hard. If a reduction in sentence were too great, parole boards would be criticized in the newspapers. Obviously the parole board wants to act on the basis of the best opinion on medical ethics that they can obtain. Accordingly, this committee was appointed.
Q. Would you please be so good as to read what you intended before?
A. There are two conclusions:
“Conclusion 1: The service of prisoners as subjects in medical experiments should be rewarded in addition to the ordinary time allowed for good conduct, industry, fidelity, and courage, but the excess time rewarded should not be so great as to exert undue influence in obtaining the consent of the prisoners. To give an excessive reward would be contrary to the ethics of medicine and would debase and jeopardize a method for doing good. Thus the amount of reduction of sentence in prison should be determined by the forbearance required by the experiment and the character of the prisoner. It is believed that a 100 percent increase in ordinary good time during the duration of the experiments would not be excessive in those experiments requiring the maximum forbearance.
“Conclusion 2: A prisoner incapable of becoming a law-abiding citizen should be told in advance, if he desires to serve as a subject in a medical experiment, not to expect any reduction in sentence. A prisoner who perpetrated an atrocious crime, even though capable of becoming a law-abiding citizen, should be told in advance, if he desires to serve as a subject in a medical experiment, not to expect any drastic reduction in sentence.”
I might explain, when I used the expression “reduction in sentence in prison,” that that implies that when the prisoner is released on parole, he is still under supervision, observation, or sentence outside of prison. He is subject to arrest and return to prison at any time; so when we say reduction of sentence in prison, we do not mean that there is an actual reduction of sentence prescribed by the court. That is the law in the State of Illinois.
Q. Witness, if the experimental subjects are prisoners, are they told about this policy ahead of time?
A. They will obviously have to be told of this policy from now on, since the matter has come up for the first time.
Q. Yesterday a prosecution document was shown to you. That was Document NO-3968, Prosecution Exhibit 517, Department of Justice, Bureau of Prisons, a document from Texas. This was in no document book but was put in only yesterday. I shall have this shown to you immediately. This is a form from the Department of Justice, Bureau of Prisons, a statement of voluntary consent and it says here the following:
“I agree to cooperate to the fullest extent with the physicians conducting the study during an over-all observation period of approximately 18 months. I understand that at the conclusion of the observation period, I am to be furnished with an appropriate Certificate of Merit and a statement of my voluntary cooperation in the study and the fact that I have thus rendered voluntarily an outstanding service to humanity will be placed in my official record.”
Is that not a rather extensive promise which might induce a prisoner to apply without having a purely idealistic motive?
A. A Certificate of Merit is an attractive little certificate that the prisoner could have framed and he could hang on the wall of his prison cell. After he was released, he could take it home and show it to his friends, and I think it might serve as an incentive to prevent the previous wrongdoer from going into the ways of wrongdoing again.
Q. Do you not think that it has a very practical usefulness? Do you not think that it would lead the police to treat one a little more leniently?
A. I doubt it, although I can’t testify regarding what the police might do.
Q. Don’t you think that it would be of some aid when looking for a job after his release?
A. When a prisoner is released on parole, before he is released, a job is found for him.
* * * * *
_REDIRECT EXAMINATION_
* * * * *
MR. HARDY: Now, Doctor, concerning your testimony regarding the conscientious objectors, I have a few points which may tend to clarify this situation in the minds of defense counsel. Would you tell us how a person is classified as a conscientious objector?
WITNESS DR. IVY: Well, first, everyone within a certain age group in the United States had to register.
Q. Register for the draft?
A. For the draft or selective service.
Q. That is, conscription into the United States Armed Forces?
A. Yes. Then at some time later the actual draft occurred. The conscientious objector could announce that he was a conscientious objector to serving in battle or serving with the military organization at the time of registration or at the time of induction or being drafted.
Q. And after he registered his objections to participating in any manner in the Army, was he then allowed to return to his home, or was he asked to cooperate in matters which did not involve things of a military nature?
A. No. He was assigned to the Civilian Public Service Agency and asked if he wanted to cooperate by rendering public service.
Q. And that public service was work as orderly in a hospital and work in various libraries, perhaps, and other public institutions?
A. Yes, or forest fire prevention, and cleaning up the woods.
Q. Was this man, this conscientious objector, in confinement?
A. They were only placed under confinement when they would not cooperate in any way.
Q. Was there a national committee to take care of the interests of the objectors?
A. Yes. As a general rule the conscientious objectors were supervised by a civilian religious group, such as the Quakers or the Mennonites.
Q. Was the conscientious objector under any duty to volunteer for medical experiments?
A. None whatsoever.
Q. However, he was under obligation to work in various libraries or forest fire prevention, etc., if requested to by the committee?
A. Yes. It was necessary for him to render some sort of public service.
Q. Then you determined that you needed experimental subjects. How did it happen that you decided that conscientious objectors might be made available to you?
A. As I recall, the National Research Council, in view of the fact that the medical students and dental students were mustered into the Army and could no longer serve as subjects in experiments in universities and medical school laboratories, took the matter up with the Director of the Civilian Public Service, who then decided that the conscientious objectors might be allowed to volunteer for such work in connection with medical schools and research institutes.
Q. And by that token you were permitted to approach conscientious objectors to ask them whether or not they would volunteer for medical experiments?
A. I or the investigator did not approach the conscientious objectors directly. We requested that a certain number of volunteers be allowed or sent to us through the Director of the Civilian Public Service Agency.
Q. And those conscientious objectors were sent to your university laboratories?
A. Yes. That is correct.
Q. While they were at your laboratory were they living in the dormitories at the university?
A. Yes, in the dormitories or in the hospitals.
Q. Were they under any surveillance at all?
A. One person in the group was appointed as a leader, supervisor of the group, and it was his duty to see that the men carried out their instructions properly and on time.
Q. Was it possible for any one of these objectors to receive leave or to have week end liberty?
A. It was not in most experiments.
Q. Well, assume for the moment that you were not going to use the experimental subject for a period of two or three weeks. Was he in such a position that he could not go on leave or go to the city or was he supposed to remain at your university at all times?
A. No. He could leave for certain periods of time, varying in length from a few hours to a few days, depending upon the nature of the experiment. If it were a dietary experiment, then he had to eat at the diet table all the time.
Q. Then he actually had freedom of locomotion, in contradistinction to a prisoner in an institution or penitentiary?
A. Yes.
* * * * *
* * * * *
[Further materials from the record in the Medical Case appear in Volume II. See Contents, p. VI, this volume.]
[162] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[163] Document rejected by the Tribunal.
[164] Final plea is recorded in mimeographed transcript, 17 July 1947, pp. 11154-11176.
[165] Complete testimony is recorded in mimeographed transcript, 6, 7, 8 Jan. 1947, pp. 1150-1290.
[166] Vice President of the University of Illinois in charge of the College of Medicine, Dentistry, Pharmacy, and Nursing, and distinguished professor of physiology at the Graduate School of the University of Illinois.
Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 1947, pp. 9029-9324.
[167] Counsel for the defendant Karl Brandt refers to experiments carried out in the United States during World War II.
TRANSCRIBER NOTES
Punctuation and spelling has been maintained except where obvious printer errors have occurred such as missing periods or commas for periods. American spelling occurs throughout the document. Multiple occurrences of the following spellings which differ and are found throughout this volume are as follows:
court martial court-martial blood letting blood-letting border line border-line front line front-line cross examination cross-examination long continued long-continued Jewish Bolshevik Jewish-Bolshevik concentration camp concentration-camp peace time peacetime Fraeulein Frau Frankfurt/Main Frankfurt-on-Main
Although some sentences may appear to have incorrect spellings or verb tenses, the original text has been maintained as it represents what the tribunal read into the record and reflects the actual translations between the German, English, Russian and French documents presented in the trial(s). This volume had no German, Polish, Russian or other eastern European diacritics, only French diacritics. As a result, Goering and Fuehrer are spelled without umlauts throughout.
An attempt has been made to produce this ebook in a format as close as possible to the original document's presentation and layout.
Some illustrations were moved to facilitate page layout.
[The end of _Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (Oct 1946-Apr 1949) (Vol. 1)_, by Anonymous.]