c. Selections from the Argumentation of the Defense

_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT SIEVERS_

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_Malaria Experiments_

1. Under the direction of Professor Dr. Schilling, malaria experiments were carried out in Dachau concentration camp in the years 1941-1944.

2. According to the statements in the verdict of the United States Military Court at Dachau of 26 January 1946 (_NO-856, Pros. Ex. 125_) a great number of people were killed in these experiments.

3. Sievers had not the slightest connection with either Professor Schilling’s malaria experiments or with any other malaria experiments.

The prosecution charges Sievers with participation in malaria experiments.

“As can be seen in all spheres of this devilish experiment program in Nazi Germany, the defendants charged with the malaria experiments had on their side an extensive knowledge of Schilling’s activity. In some cases they worked actively with the late Dr. Schilling”. (_Tr. pp. 403-4._)

_For proof, the prosecution refers to NO-721, Prosecution Exhibit 126._

Regarding 3546-PS, Prosecution Exhibit 123, Sievers’ diary 1944, entries of 22 February 1944 and 31 May 1944, the prosecution states:

“From this document it can be seen that on or about 1 April 1942 Wolfram Sievers had knowledge of Dr. Schilling’s activity in Dachau. This letter represents a proposal for planned further experiments and clearly shows that the distinguished Wolfram Sievers in his capacity as Reich Business Manager of Ahnenerbe had a finger in all these matters.”

The defense has proved:

Sievers stated in his cross-examination that the affairs which he discussed with Dr. May on 1 April 1942 in Munich had nothing whatsoever to do with malaria experiments. Sievers paid a social visit to Dr. Schilling in Dachau in the middle of the year 1944 in order to get Dr. Ploetner released for the manufacture of pectin. (_Cross-examination of Sievers, German Tr. pp. 5692-93._) Neither Sievers nor the Ahnenerbe nor the Institute for Military Scientific Research [Institut fuer Wehrwissenschaftliche Zweckforschung] had anything to do with malaria experiments. (_Cross-examination of Sievers, German Tr. p. 5693_; _Statement of the witness Dr. May, German Tr. p. 5877_.) Neither can there be proved from Point four of the memorandum of 1 April 1942 (_NO-721, Pros. Ex. 126_) any connection of Sievers with the malaria experiments.

An affidavit of the secretary Hildegard Wolff relates how the memorandum of 1 April 1942 and the drawing up of Point four came about. She took down and typed the memorandum from Sievers’ dictation. (_Sievers 11, Sievers Ex. 8._) According to this, Sievers, in the very hurried dictation, said Frau Wolff should write down as Point four what Himmler had said in his telephone conversation about the erection of the institute in Dachau. Therefore, not Sievers’ but Himmler’s opinion is stated here.

Through the discussion of 1 April 1942 between Sievers and Dr. May it had been made completely clear that human experiments within the framework of the research order to Dr. May were absolutely out of the question, not only for the reason that such experiments would have been rejected on principle, but also because human experiments had nothing whatsoever to do with the task of developing an insecticide for insects harmful to human beings. Moreover, no other kind of human experiment was carried out in connection with Dr. May’s work. The witness, Dr. May, testified concerning Sievers’ diary entry of 22 February 1944 that there never existed any cooperation between Dr. May, Dr. Ploetner, and Dr. Schilling. (_Witness Dr. May, German Tr. p. 5878._)

That, however, would have been a necessary condition in order to classify Sievers’ administrative activity in this connection as participation.

As to points four, five, six, seven, there is no occasion for statements concerning these points.

_Summary_

Since Sievers took no part in the malaria experiments of Professor Schilling at Dachau or any other malaria experiments, he is not guilty of a crime. Thus any special responsibility and participation in malaria experiments is excluded.

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_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT ROSE_

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_Statements Concerning the Question of Responsibility of the Defendant Rose for the Malaria Experiments Carried Out by Professor Claus Schilling at the Concentration Camp Dachau and Concerning the Question of Rose’s Participation in These Experiments._

In the indictment, Professor Rose is not charged with special responsibility for the malaria experiments carried out by Professor Schilling at the Dachau concentration camp or with participation. The defendant Rose is also not mentioned in Document Book No. 4 of the prosecution which deals with these malaria experiments. In the course of the verbal proceedings in the court, the prosecution has, however, preferred charges against Professor Rose to this effect and introduced several new documents in the trial during the cross-examination of defendant Rose (_NO-1752, Pros. Ex. 487_; _NO-1753, Pros. Ex. 488_; _NO-1755, Pros. Ex. 489_; _NO-1756, Pros. Ex. 486_) and also heard the witness Vieweg concerning this question. (_German Tr., 13 Dec. 46, pp. 464-516._)

This evidence shows that among others also the Department for Tropical Diseases of the Robert Koch Institute in Berlin, under the direction of the defendant Rose, sent anopheles eggs and malaria cultures on a few occasions to Professor Schilling at Dachau during the years 1942 to 1943. At this juncture it should be mentioned that it is completely immaterial for the judgment of the case what the name of the culture of malaria tertiana was and whether or not its name was first changed by Schilling to “Culture Rose”. The above-mentioned evidence also shows that Professor Schilling told Professor Rose in two of his letters about his breeding of mosquitoes; finally it also shows that Professor Schilling asked the defendant Rose from Italy to procure for him spleens of persons whose death had been caused by malaria. This was in 1941, at a time when Schilling was not yet working in Dachau. According to the testimony given by the defendant Rose during cross-examination (_Tr. pp. 6412-3_), he evidently complied with Schilling’s request.

The Tribunal will have to decide whether these above-mentioned activities of the Department for Tropical Diseases of the Robert Koch Institute under the management of the defendant Rose or his own activities, constitute, within the meaning of the Penal Code, participation on the part of the defendant Rose in the deeds of Professor Schilling. In my opinion this decision can only be a negative one, for the followings reasons:

The delivery of material necessary for malaria research such as anopheles eggs and malaria cultures was one of the official duties of the Department for Tropical Diseases of the Robert Koch Institute. (_Rose 11, Rose Ex. 27._) This department had a section which dealt exclusively with these matters. This can be seen from both the yearly reports of the Robert Koch Institute and from the report covering the Third Conference East of Consulting Specialists discussing work-projects. (_Rose 38, Rose Ex. 10_; _Rose 10, Rose Ex. 26_; _Rose 12, Rose Ex. 28_.) Deliveries of this kind are internationally common practice and were never denied by the defendant Rose. It is also common practice to use the organs of human corpses for the carrying out of scientific research. (_Tr. p. 6474_; _Rose 51, Rose Ex. 50_.)

The prerequisites for such deliveries are that they are requested either by well-known institutes or by renowned research scientists. It cannot be denied that Schilling, a coworker of Robert Koch and a member of the malaria commission of the League of Nations, was famous as a malaria research scientist. In a case of this kind, the non-delivery of such material would have been an express violation of traditional practice and of official duty. It is also not international usage for the orderer to be questioned about the intended use of the material before its delivery. (_Compare Mrugowsky 4a, Mrugowsky Ex. 96_; _Rose 49, Rose Ex. 48_; _German Tr., 19 June 47, p. 9680_.) Even if Professor Rose declared, in the witness box during examination on his own behalf, that he assumes full responsibility for it, it should be mentioned here that such deliveries are carried out in such a routine way that the chief of the institute often knows nothing about it since these matters are dispatched independently by the personnel employed by him in the laboratory. This also was the procedure in the case in question as the evidence shows unequivocally. (_Rose 35, Rose Ex. 32_; _German Tr., 16 Dec. 46, p. 507_; _Tr. pp. 6020, 6352_.) Thus, it is by no means surprising that the defendant Rose could no longer remember the correspondence with Professor Schilling put before him by the prosecution during cross-examination especially since undoubtedly it often happens that, as in the case in question, although the letters are sent by the orderer to the head of such an institute personally, the dispatching of the order is nevertheless carried out independently by the personnel of the institute.

Besides, the delivery of these materials by the Department for Tropical Diseases of the Robert Koch Institute to Professor Schilling was by no means a prerequisite for the carrying out of his experiments in Dachau, since it has already been established that Schilling obtained no less than 12 other malaria cultures from other institutes. (_NO-1752, Pros. Ex. 487_; _German Tr., 16 Dec. 46, p. 509_.) Professor Schilling also obtained mosquitoes from other institutes. (_German Tr., 16 Dec. 46, p. 507._) Naturally these institutes could also not have had any scruples about sending material to Professor Schilling. In addition to this, Professor Schilling personally maintained a group of people to catch mosquitoes. (_German Tr., 16 Dec. 46, p. 508._) If Professor Schilling turned at all to the Robert Koch Institute in this matter, the main reason for doing so was that for decades he himself had been the head of the Department for Tropical Diseases of the Institute and that personnel were still working there who had formerly already been employed under his management.

The defendant Rose did, as a matter of fact, oppose Schilling’s scientific approach to the problem as may clearly be seen from his opinion on Schilling for the Reich Ministry of the Interior (_Tr. p. 6021_) and from his lecture in Basel. (_Rose 25, Rose Ex. 31._) However, to judge by Professor Schilling’s personality and past he could, nevertheless, not conceive the idea that Professor Schilling’s work at Dachau could be anything but completely above reproach. Experiments on human beings in malaria research are first of all, a matter of course and common practice. Even if the defendant Rose always limited his own work to the traditional evaluation of therapeutic malaria infections, experiments on prisoners in this field must unquestionably be permissible from an ethical point of view, as can be proved by the malaria experiments on many hundreds of prisoners in American prisons. (_Karl Brandt 1, Karl Brandt Ex. 1_; _Karl Brandt 117, Karl Brandt Ex. 103_; _Mrugowsky 80, Mrugowsky Ex. 76_; _Rose 50, Rose Ex. 49_.) Apart from the fact that the delivery of material to Schilling by no means obliged him to inform himself about the latter’s research work and its ways and means, Rose really had no knowledge whatsoever of the object of the research carried out by Schilling, and did not know the collaborators of the latter. (_Rose 29, Rose Ex. 34_; _Rose 30, Rose Ex. 33_.) Much less was he informed about the conditions under which Schilling was working in Dachau.

The defendant Rose himself is a well-known malaria research scientist. Malaria research was the main study of his department at the Robert Koch Institute in Berlin and also later in Pfaffenrode. Professor Schilling only worked with malaria tertiana (benign tertian) in Dachau. (_NO-1752, Pros. Ex. 487._) Professor Rose, as an experienced malaria research scientist, knew of course that this form of malaria is not a dangerous one and that no complications are to be expected from it. (_Rose 50, Rose Ex. 49._) The witness Vieweg (_Tr. pp. 457-458_) also expressly stated that none of the prisoners died of malaria, but that the cause of death could be traced back to technical errors [Kunstfehler] or to complications, as, for example, faulty puncture of the liver resulting in hemorrhage due to omission of an operation and an overdose of pyramidon in therapy, outbreak of typhus among the experimental subjects and finally, wrong doses in the treatment with salvarsan. Just in passing it should also be mentioned here that the defendant Rose also opposed this last-mentioned method of treatment. This method was prohibited in the German Luftwaffe at his suggestion. (_NO-922, Pros. Ex. 435._)

No further explanation is necessary to show that solely the person carrying out the experiments is responsible for technical errors and negligence in the process. It seems to me that not even his superiors who ordered the work, namely Himmler and Grawitz, were responsible for them. However, a person assigned to supervise these experiments would have been obliged to take action whenever he was informed of such technical errors or negligence. The defendant Rose, however, was neither assigned to supervise nor was he informed of these matters. It is also unfair to assume that he knew about these matters, because he happened to take part in the conference on freezing experiments which took place in Nuernberg in October 1942. Firstly, the freezing experiments carried out by Professor Holzloehner, although also taking place on Dachau, were in no way connected with the malaria experiments carried out by Professor Schilling. Furthermore, the participants of the conference were misinformed about the method employed in these experiments and about the status of the experimental subjects. (_Handloser 37, Handloser Ex. 18_; _German Tr., 12 Dec. 46, p. 315_.)

Now, to be sure, it is known that Holzloehner’s, Rascher’s, and Finke’s freezing experiments were carried out in Dachau. That, however, was certainly not made public at the above-mentioned Nuernberg conference. Even if one of the participants suspected that experiments at a concentration camp were concerned, he would not have had the slightest reason to suppose that the concentration camp in question was Dachau.

Schilling’s reports about his work were always sent to Himmler or Grawitz but never went any further. That also explains why no reports about Schilling’s experiments were found in the confiscated files of the defendant Rose. (_Tr. pp. 5566, 6021_; _German Tr., 13 Dec. 46, pp. 466-7_; _German Tr., 26 Mar. 47, p. 5106_; _German Tr., 2 Apr. 47, pp. 5420-1_.)

Rose personally was the prototype of a worker above reproach in the field of malaria research and with regard to his care for the well-being of his malaria patients (_Rose 47, Rose Ex. 35_), as shown by the investigation undertaken by the competent American authorities. He risked his own life (_Rose 8, Rose Ex. 29_) in order to assure the orderly handing-over of his Malaria Research Institute in Pfaffenrode to the Americans—in contrast to Dachau, without burning files and the like, and also to insure continued regular care and medical treatment for his patients. (_Rose 31, Rose Ex. 36_; _Rose 32, Rose Ex. 37_; _Rose 33, Rose Ex. 38_; _Rose 34, Rose Ex. 39_.) It would be completely incomprehensible if such a man were to be made responsible for the technical errors and negligence of another who was not even under his influence.