c. Selections from the Argumentation of the Defense

_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT GEBHARDT_[2]

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_The State Emergency and War Emergency as Legal Excuse_

The evidence proved furthermore that the experiments to test the effectiveness of sulfanilamide were necessary to clarify a question which was not only of decisive importance for the individual soldier and the troops at the front but above and beyond this care for the individual, it was of vital importance for the fighting power of the army, and thus for the whole fighting nation. All efforts to clarify this question by studying the effect of casual wounds failed. Although drugs of the sulfanilamide series—the number of which amounts to approximately 3,000—had been tested for more than 10 years, it was impossible to form an even approximately correct idea of the most valuable remedies. It was impossible to clarify this question in peacetime by the observation of many thousands of people with casual wounds and by circularized inquiries. Nor could a clear answer be found to this question of vital importance to many hundreds of thousands of soldiers by observation of the wounded in field hospitals during the war. In this argumentation it is impossible and also unnecessary to examine details of the problem of wound infection and its control in modern warfare. I may assume that the importance of this question is known to the Tribunal and needs no further proof since this question not only played a part in the German Army but was a matter of special research and measures in the armies all over the world.

In 1942 the conditions in the German Army and in the Medical Services of the Wehrmacht became intensified only insofar as with the beginning of the campaign against the Soviet Union new difficulties presented themselves in this sphere, too. In the campaigns against Poland and France it had been possible to master the wound infections by the usual surgical means, but the difficulties in the war against the USSR increased beyond all measures. It is unnecessary to examine the reasons for this more closely here. It is clear that they resulted from the great distances and poor traffic conditions, but they were also caused by climatic conditions prevailing there.

The fighting power of the German Army was so affected by the heavy casualties that it was impossible to allocate a correspondingly large number of experienced surgeons to the main dressing stations in order to control bacterial wound infection with surgical measures.

During the presentation of evidence the difficult situation in which the German armies found themselves in the winter of 1941-42 on the Moscow front and in the south around Rostov was repeatedly stressed. Here it was demonstrated clearly that the German Wehrmacht, and with it the German people, were involved in a life and death struggle.

The leaders of the German Wehrmacht would have neglected their duty if confronted with these facts, had they not attempted to solve, at any price, the problem as to which chemical preparations were capable of preventing bacterial wound infection and, above all, gas gangrene, and also whether effective means could be found at all. Whatever the answer to this question was, it had to be found as soon as possible in order to avert an imminent danger and to throw light on a question which was important to the individual wounded soldier as well as to the striking power of the whole army. After the failure of all attempts to solve the problem through clinical observation of incidental wounds and other methods, and, in view of the particularly difficult situation and especially of the time factor, there was nothing left but to decide the question through an experiment on human beings. The responsible leaders of the German Wehrmacht did not hesitate to draw the conclusions resulting from this situation, and the head of the German Reich, who was at the same time Commander in Chief of the German Wehrmacht, gave orders for a final solution of this problem by way of large scale experimentation.

Let us examine the legal conclusions to be drawn from this situation as it existed in 1942 for the German Wehrmacht and therefore for the German state—in particular regarding the assumption of an existing national emergency.

The problem of emergency and the specific case of self-defense has been regulated in almost all criminal codes in a way applicable only to individual cases. The individual is granted impunity under certain conditions when “acting in an individual emergency arising for himself or others”. The administration of justice and legal literature, however, recognize that even the commonwealth, the “state,” can find itself in an emergency, and that acts which are meant to and actually do contribute to overcome this emergency may be exempt from punishment.

1. First of all, the question has been raised whether the conception of self-defense, conceived to cover individual cases, can be extended to include a state self-defense, meaning a self-defense for the benefit of the state and the commonwealth. The answer to this question was a unanimous affirmative.

2. The same reasoning, however, as applied to self-defense is also applicable to the conception of an emergency, as embodied, for example, in Section 54 of the German Penal Code and in almost all modern systems of penal law. These provisions, too, were originally conceived to cover individual cases. But, using them as a starting point, legal literature and the administration of justice arrive at a recognition in principle of a national emergency with a corresponding effect. With regard to the definition of the concept of an emergency generally given in the penal laws, the application of these provisions to the state, while justified in itself, can only be effected in principle.

When the idea of an emergency is applied to the state and when the individual is authorized to commit acts for the purpose of eliminating such a national emergency, here, as in the case of the ordinary emergency determined by individual conditions, the objective values must be estimated. The necessary consequences of conceding such actions on the part of the individual must be that not only is he absolved from guilt, but moreover his acts are “justified”. In other words, the so-called national emergency, even though it is recognized only as an analogous application of the ordinary concept of emergency in criminal law, is a legal excuse. But what does “application” in principle to the cases of national emergency mean? Whether a national emergency is “unprovoked” or not, whether, for example, the war waged is a “war of aggression” can obviously be of no importance in this connection. The existence of the emergency only is decisive. The vital interests of the commonwealth and the state are substituted for the limitation of individual interests. Summarizing, we can define the so-called national emergency as an emergency involving the vital interests of the state and the general public which cannot be eliminated in any other way. As far as such emergency authorizes action, not only may a legal excuse be assumed but a true ground for justification exists.

I shall examine later how far an erroneously assumed national emergency, a so-called putative emergency, is possible and is to be considered as a legal excuse. What consequences arise from this legal position in the case of the defendant Karl Gebhardt?

1. As proved by the evidence the general situation in the various theaters of war in the year 1942 was such that it brought about an “actual”, that is, an immediately imminent danger to the vital interests of the state as the belligerent power and to the individuals affected by the war. The conditions on the eastern front in the winter of 1941-42 as they have been repeatedly described during the submission of evidence created a situation which endangered the existence of the state, through the danger of wound infection and the threat to the survival of the wounded and the fighting strength of the troops arising therefrom.

It must be added that the past World War was fought not only with man and material but also with propaganda. In this connection I refer to the statements of the defendant Gebhardt in the witness stand as far as they concern information given to him by the Chief of Office V of the Reich Security Main Office, SS Gruppenfuehrer Nebe. This information shows that at that particular time the enemy tried to undermine the fighting spirit of the German troops with pamphlets describing the organization and material of the German Wehrmacht Medical Service as backward, while on the other hand praising certain remedies of the Allied Forces, for instance penicillin, as “secret miracle weapons”.

2. The assumption of a state of national emergency presupposes that the action forming the subject of the indictment was taken in order to remove the danger. By this is meant the objective purpose of the action, not just the subjective purpose of the individual committing the action. The question, therefore, is whether the sulfanilamide experiments were an objectively adequate means of averting the danger. This, however, does not mean that the preparations really were an adequate means of expertly combatting the danger. According to the evidence there can be no doubt that these assumptions really did exist.

3. Finally, there must not be “any different way” of eliminating the national emergency. One must not misunderstand this requirement. Not every different way, which could be pursued only by corresponding violations, excludes an appeal to national emergency. The requirement mentioned does not mean that the way of salvation pursued must necessarily be the only one possible. Of course, if the different possibilities of salvation constitute evils of different degrees, the lesser one is to be chosen. It must also be assumed that a certain proportion should be kept between the violation and the evil inherent in the danger. In view of the fact, however, that in the present case many tens of thousands of wounded persons were in danger of death, this viewpoint does not present any difficulty here.

According to the evidence there can be no doubt that a better way could not have been chosen. On the contrary, it has been shown that in peacetime as well as in wartime everything was tried without success to clarify the problem of the efficacy of sulfanilamides. And the fact, too, that prisoners were chosen as experimental subjects who had been sentenced to death and were destined for execution, and to whom the prospect of pardon was held out and actually granted cannot be judged in a negative sense. This fact cannot be used as an argument when examining the legal viewpoint, because participation in these experiments meant the only chance for the prisoners to escape imminent execution. In this connection I refer to the explanations I have already given in connection with the so-called probable consent.

_Excuse_

In addition to the general national emergency discussed, the literature of international law recognizes also a special war emergency. According to this, “in a state of self-defense and emergency, even such actions are permitted which violate the laws of warfare and therefore international law.” But in the sense of international law the “military necessity of war” which by itself never justifies the violation of the laws of warfare differs from self-defense and emergency. Emergency and necessity of war, however, are different concepts. The emergency due to which the self-preservation and the self-development of the threatened nation are at stake justifies, according to general principles recognized by the national laws of all civilized countries, the violation of every international standard and thus also of the legal principles of the laws of warfare. When applying the concepts of self-defense and emergency as recognized by criminal and international law, the illegality of violations committed is excluded if the nation found itself in a situation which could not be relieved by any other means.

In this connection the following must be pointed out:

I have already explained that the experimental subjects, on whom the sulfanilamide experiments forming the subject of this case were performed, came under German jurisdiction, even if one holds the opinion that Poland’s case was not one of genuine “debellatio” but only of “ocupatio bellica”.[3] However, whatever opinion one might hold with regard to this question, there can be no doubt that assuming an emergency according to international law, the performance of the experiments would have been justified even if at the time the experimental subjects had still been citizens of an enemy nation. Decisive for the regulation of the conditions of such persons according to international law are the “Regulations Respecting the Laws and Customs of War on Land” annexed to the Hague Convention, dated 18 October 1907. According to the above statements, however, even a violation of such special conventions, as contained for instance in the special prohibitions of Article 23, is justified during a genuine war emergency. The fact that the special conditions characterizing a real war emergency are existent invalidates the objection that citizens of another country should not have been used for the experiments.

_The Evaluation of Conflicting Rights and_ _Interests as Legal Excuse_

According to well-considered opinions, we must start from the premise that the defendants, both in principle and in procedure, are to be tried according to German criminal law. They lived under it during the period in question and were subject thereto. For this reason I wish to approach one more viewpoint which should be considered independently, and in addition to the legal excuses already mentioned, when judging the conduct of the defendants.

For many years the legal provisions for emergency cases have proved inadequate. For a long time an endeavor was made to fill the gaps with theoretical explanations of a general nature, and finally the Reich Supreme Court handed down basic decisions expressly recognizing an “extra legal emergency”. The considerations on which they were based are known as the “objective principle of the evaluation of conflicting rights and interests.” In the legal administration of the Reich Supreme Court and in further discussions this principle, to be sure, is combined with subjective considerations of courses of action taken by the perpetrator in the line of duty. Therefore it is necessary to discuss both considerations, that of evaluating conflicting rights and interests and that of compulsion by duty together, even if we must and shall keep them distinctly separated for the time being.

The consideration of an evaluation of conflicting rights and interests as legal excuse is generally formulated as follows:

“Whoever violates or jeopardizes a legally protected right or interest of lesser value in order to save thereby a legally protected right or interest of greater value does not act in violation of the law.”

The lesser value must yield to the greater one. The act, when regarded from this point of view, is justified, its unlawfulness—and not merely the guilt or the perpetrator—is cancelled out.

This so-called principle of evaluating conflicting rights and interests is first of all a formal principle which establishes the precedence of the more valuable right or interest as such. This formal evaluation principle requires on its part a further material evaluation of the rights or interests comparatively considered. This evaluation again requires the adoption of the law and its purport to the general attitude of a civilization and, finally, to the conception of law itself.

Let us examine the conclusions to be drawn from this legal situation in our case: Agreement and so-called likely agreement, just as well as a national emergency and a war emergency, constitute special legal justifications, the recognition of which allows us to dispense with a recourse to the general principle of evaluating conflicting rights and interests. The latter retains its subsidiary importance. Furthermore, those two special legal justifications refer in their purport to a fair and equitable way of thinking as well as to the proportional importance of various types of evils; thus they themselves include the conception of evaluating conflicting rights and values. For this reason, among others, the following must be explained in detail at this point:

A national emergency and a war emergency were unmistakably in existence in 1942. Every day the lives of thousands of wounded were endangered unless the threatening wound infection could be checked by the application of proper remedies and the elimination of inadequate remedies. The danger was “actual”. Immediate help had to be provided. The “public interest” demanded the experimental clarification of this question. The evidence has shown that the question could not be clarified by experiments on animals or by the observation of incidental wounds.

The last word on this question, however, is not said merely by reference to the public interest. Opposed to the public interest are the individual interests. The saying “necessity knows no law” cannot claim unlimited validity. But just as little can the infringement on individual interests in order to save others be considered as “contrary to good morals”. The evidence has shown that the members of the resistance movement of Camp Ravensbrueck who were condemned to death could only escape imminent execution if they submitted to the experiments which form the subject of this indictment. There is no need to examine here and now whether the experimental subjects did give their consent or whether they presumably would have consented, if, from their personal point of view and in the full knowledge of the situation, they could have made a decision within the meaning of an objective judicial opinion based on probability. What really matters is the question of whether after a just and fair evaluation of the interests of the general public and the real interests of the experimental subjects, the defendant could conclude that, all circumstances considered, the execution of the experiments was justifiable. Without doubt this question can be answered in the affirmative. Quite apart from the interest of the state in the execution of the experiments, participation in the experiments was in the real and well-considered interest of the experimental subjects themselves, since this participation offered the only possibility of saving their lives through an act of mercy.

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_The Defendant’s Erroneous Assumption of an Emergency_ (_Putative Emergency_)

I have already mentioned the circumstances which justify the assumption of a national emergency and a war emergency caused by the special conditions prevailing in 1942. If these conditions actually prevailed, the illegality of the act and not only the guilt of the perpetrator would be excluded for reasons previously enumerated. If the defendant had erroneously assumed circumstances which if they really had existed would have justified a national emergency and a war emergency, then, according to the general principles already mentioned, the intent of the defendant and thus his guilt would also be eliminated in this respect. The evidence, especially the defendant’s own statements on the witness stand, leaves no doubt that, when the experiments began in 1942, he had assumed the existence of such circumstances which were indeed the starting point and motive for ordering and carrying out these experiments.

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_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT SIEVERS_[4]

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May I remind you of the exciting part of my case in chief which dealt with Sievers’ participation in the resistance against the National Socialist government and administration. By putting forward his activity in a resistance movement, the defendant Sievers does not endeavor to obtain a mitigation of an eventual condemnation. In my opinion, this activity must under all circumstances result in his acquittal, even though, contrary to expectation the High Tribunal should tend towards the opinion that Sievers had participated in the accused crimes.

In the first place it is my intention to discuss a series of legal questions that have at all times been acknowledged in the criminal law of all civilized nations. It is not by any means the task of the High Tribunal to apply any special article of law, but, from general legal and legal-philosophical principles, to lay down a rule finding and creating a new law to meet a new situation. It need hardly be said that first and foremost I am supporting my own client. But in your verdict, you, your Honors, are not judging only this defendant. Beyond this particular case your verdict has a far more extensive, general, nay, world-wide importance. For it is the first time that a tribunal of such importance is to decide upon the actions of a member of a resistance movement. Consequently, your judgment is a fundamental one and a signpost for our time for many, many other defendants and accused men in this connection who have stood before this Tribunal or will be brought before other courts. Your decision for all time extends to cover thousands and thousands of men who, at some time, may be put in the position of opposing some criminal system of government by similar means as Sievers did. On this our globe there are still autocracies and totalitarian dictatorships and it requires only little foresight to realize that other dictatorships may involve other international entanglements and wars of the most horrible nature. Furthermore, in the future, mankind will again and again be in sore need of courageous men who for the sake of their nation and for the welfare of mankind oppose themselves to such dangerous doings. It is for such champions and for such groups of champions that your verdict will be a criterion and a signpost. You are deciding in advance the future possibilities and the sphere of action of future resistance movements against criminal governments and their chiefs. You are offered the opportunity of checking such movements by your verdict. But you are also able to give them the safety necessary for their dangerous enterprise and the success of their proceedings. How and where would such helpers be found in future if, apart from the immediate peril, they have to reckon with the additional danger of being called to account by the very people for whom they risked their lives? And therefore, your Honors, with your verdict in the Sievers case you take upon you a responsibility before the whole world and for all time to come, a responsibility as is seldom placed upon a tribunal. But on the other hand you can also say with pride that with this judgment you render an immeasurable service to the world in its struggle for peace and justice.

Therefore the reasons for your verdict in the Sievers case are so immensely important, far more important than the trifling Sievers case can be in the universal history of all times. I am forced to detail the particulars of these problems.

It goes without saying that the member of a resistance movement can only refer to his resistance, if this resistance is lawful. This will not always be the case; for, political crime and similar actions committed for political motives are crimes and will remain such. He who removes a political adversary only to take his position or to open the way for his partisans acts unlawfully and is liable to punishment. The situation, however, becomes different if not only a political discussion is interrupted by murder, but where a tyrant whose government is inscribed with bloody letters in the annals of mankind is at last felled to the ground. In this case the perpetrator is supported by an acknowledged excuse. This excuse is self-defense.

According to the German Penal Code, Article 53, an action is not punishable if it is committed in self-defense. And self-defense is such defense as is necessary to ward off from oneself or another person an imminent unlawful attack.

These principles are, however, not only German legal stipulations. They are legal values of all nations and all times. To a large extent they tally with human sentiments and are termed “the great law of defense.” They are already found in Roman law in the formulation “vim vi expellere [repellere] licet”—force may be driven out by force—and have been enthusiastically taken over by English common law and by American law, as stated by Wharton, “Criminal Law”, paragraph 613. They authorize every individual to ward off injury from himself or another person with all necessary means at his command. From this point of view too the struggle against a criminal government threatening the peace of the world, preparing aggressive wars, ready without any purpose or need to plunge the whole world into immeasurable misery from sheer striving for power, from presumption and conceit; struggle and resistance against such a government and such guidance are lawful and permissible, no matter by what means they may be carried on. Since the end of the war even, the opinion has been maintained more and more that such a struggle is not only lawful and permissible but is even the duty of every individual. Is not the collective guilt of the whole German nation substantiated by the charge that it witnessed the doings of the Nazi government without interfering at least with a secretly clenched fist in its pocket? Murder and manslaughter, bodily injury and restriction of liberty inflicted upon the potentates and responsible men of such a system are acts of self-defense for the benefit of peace and mankind. They are lawful and exempt from punishment; they are a duty if there is no help possible in any other way.

From times immemorial this question concerning the lawfulness and duty of committing political murder has engaged not only lawyers but also a large number of poets and philosophers. Friedrich von Schiller justified the murder committed on Gessler as the last desperate attempt to escape slavery. Thus the juridical vindication of murdering a criminal tyrant is paralleled by its high moral estimation.

But it may happen that not only the real assailants come to grief. He who has to ward off an attack may be forced to implicate a third person hitherto not involved. This case too is provided for in the German Penal Code and is termed “necessity”. The regulation of Article 54 runs as follows: “No punishable act has been committed when the act—self-defense apart—was committed in an emergency, which could be met in no other way, to escape a present danger to the life or body of the perpetrator or a relative of his.”

The legal codes of all nations and all ages have been compelled to face the problem of the conflict between two legal values which can only be solved by hurting or even annihilating one of the two. Justice cannot insist with utter consistency upon the individual respecting foreign rights and sacrificing his own at all costs and under any circumstances. A Frenchman says to this question: “Cette théorie est admirable pour des saints et pour des héros, mais elle n’est point faite pour la vulgaire humanité”—“This theory is admirable for saints and heroes, but it is not for common humanity”—[Pradier—Fodéré, vol. I, page 367, Traité du droit international public européen et américain.] “Quod non est licitum in lege, necessitas facit licitum”—“What is not permitted by law, necessity makes permissible”—[says the Roman law], and the French lawyer Rossi says: “L’acte ne peut être excusable lorsque l’agent cède à l’instinct de sa propre conservation, lorsqu’il se trouve en présence d’un peril imminent, lorsqu’il s’agit de la vie.”—“The act can be excused only when the perpetrator yields to the instinct of self-preservation, when he finds himself faced with imminent danger, when life itself is at stake.”—An old German legal proverb runs: “Necessity knows no law.” Last but not least, American law deals with this problem under the name “necessity” (_Wharton, “Criminal Law,” par. 642_), a literal translation of the German expression “Not”. So by virtue of necessity a shipwrecked sailor may push his fellow-sufferer from the board which is too small to save both of them. If applied to resistance movements against criminal governments, these principles mean that third persons hitherto unconcerned may also be involved, if there is no other alternative, if “Not”, “necessitas”, “necessity” requires it peremptorily and unavoidably.

You, your Honors, are called upon to bring the principles of “self-defense” and of “necessity”, “this great law of defense” to their common denominator, to apply them to the Sievers case and thus insert them into the unwritten rules of the international relations of public and political law. The Anglo-Saxon legal way of thinking and the principles of natural law will give you valuable support in forming the verdict.

Now I can turn to the specific case of Sievers.

In order to judge his actions the following questions are of a decisive importance: Was there a German resistance movement at all? Did the Hielscher group belong to this resistance movement? Was this group to be taken seriously and what were its aims? Was Sievers a member of this group and what were his tasks? What was his attitude in performing these tasks? Were there also other possibilities for him? It has frequently been maintained that there was no German resistance movement. But _the German resistance existed_.

I must, however, confess that the question “Where was this resistance?” readily suggests itself to such people as are not acquainted with the internal conditions of Germany, above all during the war. I must also grant the fact that scarcely more than Stauffenberg’s plot with its staggering consequences came before the public.

He who puts such a question completely misjudges the conditions under which the whole resistance movement had to work against the Nazi Government. He forgets that up to the fatal date of 20 July 1944, he had also no idea of the group round Stauffenberg. I am therefore all the more forced to give a concise exposition of the situation which in the Third Reich everybody opposing the Nazi Government had to face.

From the very beginning it was the aim of the authoritarian government to get hold of every German man, every German woman, all children, and old men in order to bring them up in the spirit of the new method of government. The totalitarian striving for power did not stop short at personal freedom. It removed professional and economic organizations, cultural and social institutions, some of which were reestablished in another form, subject to the control of the Nazi Government.

It was against this state of things that the struggle set in from the very beginning. Nothing would be more wrong than to believe that this struggle could be waged in the open street with large quantities of propaganda material, display of physical force, with fire arms, bombs, war, and rumors of war. Even in the trade unions, the most consistent and resolute adversaries of the new government in 1933, such a method was not possible. This government kept a tight rein over the whole public apparatus controlling in an increasing degree the private spheres through the organizations of the SD, Gestapo, etc. The ambiguous stipulations of the law against malicious acts or insults to the state and party (Heimtueckegesetz) made possible the imprisonment of people even for accidental deprecatory remarks. Political discrimination and the constant danger of being sent to a concentration camp were the effects of many innocent remarks. No newspaper could have been found to agitate against the oppressors. But if handbills were secretly distributed the contents of which defamed the Nazi government, the whole apparatus of the police, Gestapo, SD, etc., was set in motion. The possession of weapons was considered circumstantial evidence of treasonable enterprises and meant capital punishment for the imprudent. It must be added that there was a widely extended spy system sticking to everybody’s heels. One had even to guard oneself against one’s nearest relations and children.

These few words concerning the internal situation of Germany were necessary as an answer to the absurd question put in Stockholm to the witness Hielscher: “Why did you not speak in the open market place [publicly]?” (_Tr. p. 5935._)

The most obvious kind of opposition was offered by the two great Christian churches. How much and how often were the antichrist and his false prophets not preached against, how many clergymen of all confessions were sent to prisons, penitentiaries, concentration camps, nay, to death? It is true, the churches could venture forth more openly than other people. For they did not intend to participate in a _forcible_ removal of the system, in the killing of its leaders and representatives, in the fight with arms. But the nonecclesiastical resistance groups had realized that the Nazi dictatorship could not be overthrown without violence; they were not subject to the political-philosophical impediments and restrictions of the churches, they could not throw off the mask until the day of action had dawned. Up to that time they were condemned to be silent, they had to camouflage, acting on the old principle of all conspirators: “Never speak of your aim, but always think of it!” If they had forgotten this principle, sooner or later unquestioningly they would have been betrayed by a spy and liquidated by the Gestapo. They would never have got as far as action. Did not the group round Stauffenberg act in this way too? Who knew of its existence before the bomb burst in Hitler’s headquarters on 20 July 1944? The same was the case with all the other resistance groups which unfortunately no longer had the possibility of acting and some of which were traced and secretly killed in spite of this.

The fact that all of them existed is proved, however, by the small number of publications: the pamphlets of Emil Henk, of Franklin L. Ford and other authors, and Neuhaeusler’s book, “Cross and Swastika”.

But downright classical witnesses are the numerous bloody victims whom the People’s Court of Justice [Volksgerichtshof] and the Gestapo had sent to the concentration camps and to death.

One of these groups was the group around Hielscher, a member of which was the defendant Sievers.

_There was a Hielscher group, it existed, it acted._ Hielscher himself is an unimpeachable witness of this. In connection with 20 July 1944, he was imprisoned for three months and was to be hanged. Hielscher’s illegal activity is sworn to by many other no less trustworthy witnesses. As the first of them I mention the political emigrant Dr. Borkenau, who had been working against National Socialism at least since 1928. He had known Hielscher since 1928. He speaks of his hostility to National Socialism, of a “sharp attitude”. At that time he frequently negotiated and conspired with Hielscher, who set forth the methods of his fight. During his emigration, Dr. Borkenau watched Hielscher’s activity from abroad and again and again he heard: “Hielscher keeps on fighting”. If we are told so by an emigrant, we may well believe it. Another witness who never lost connection with Hielscher was Dr. Topf, who himself was an active member of the resistance movement. He too described Hielscher as a violent antagonist of National Socialism, working and struggling unswervingly. I refer to the many affidavits which I presented in this connection.

It does not speak against Hielscher’s oppositional activity that he did not stand out more in public. For him too, camouflaging up to the moment of decision was an imperative requirement, and Dr. Borkenau calls it a downright masterpiece that he so eminently succeeded in doing so.

_Sievers was a member of the Hielscher group_

There cannot be the least doubt of this fact. Apart from all the testimony, the whole personality of my client excluded any Nazi attitude. His nature and his development necessarily made him a decisive adversary of Hitler’s system of oppression, terror, and murder. Both his origin and the interests of his youth brought him into contact with people who kept aloof as much as possible from the Nazi way of thinking. He was the son of a director of ecclesiastical music; he pursued historical and religious studies. His nature led him to the Boy Scouts, in short to such interests as National Socialism calumniated with all its powers of ridicule and combated violently with stubborn dislike. All those persons who either testified or in affidavits gave evidence about his character describe him as follows: an upright man with lofty ideals of deeply rooted humanity and a strong sense of law and justice. If you combine this picture of Sievers painted by notorious anti-Fascists with all the authenticated aid that Sievers bestowed on victims of Nazism, it is only a small step to the conviction that Sievers was also a member of a resistance movement.

Perhaps the prosecution may say: “I do not believe all these stories, for both Hielscher and Sievers did not achieve anything.”

That would wrong Sievers to a high degree, your Honors! Other resistance groups too had the misfortune that they had not more opportunity to act. The witness Hielscher exposed very clearly the reasons why a standstill was inevitable after the failure of the plot on 20 July 1944. As Hielscher and his associates could no longer depend upon the army, they were compelled to start again from the very beginning.

What were the intentions and the mission of the defendant Sievers within the Hielscher group? Hielscher himself answers that. Sievers’ tasks were of two kinds: (1) Gathering news from the immediate proximity of Himmler as basis for the disposal of the resistance forces with regard to place, time, and kind of action. (2) Sievers was not only a spy and a scout; at the moment of action he was destined and ready to do away with Himmler. These two tasks require a double legal examination: Were they in themselves permissible, lawful, or even a duty? The answer to this question is to be found in the principles which I evolved in the idea of self-defense in the sphere of political struggle. What measures was he allowed to take? To what extent could he venture to advance into the domain of criminality? To what extent could he involve uninitiated third persons in his plans, even actual victims of Nazism? The rules of “necessity” lead the way for judging and solving this problem.

In taking up the first question I can be relatively brief. After all we know today, it is an irrefutable fact that Hitler and his accomplices terrorized the German Nation and the whole world in a criminal way and with criminal means, that from the beginning they were an immediate peril to peace and all civilization and that finally the worst apprehensions turned to ghastly reality. Therefore the first prerequisite for the defense of “necessity” is beyond all doubt a present illegal attack on the highest goods of mankind. To put it in the words of the German Penal Code that was the “necessity” (“not”) which was to be warded off.

But we also know that this defense was not to be accomplished with the normal means of a democratic parliamentary system. I described the truly diabolical organization by which it had been rendered impossible to make use of these means. Thence follows that the removal of Hitler and his accomplices was the only possible expedient to break and smash this system. Less hard and violent means were not available.

As a matter of course it follows that Hielscher’s plan to do away with Himmler had become legal and compulsory for those in the position to execute it. After the evidence of Hielscher and other trustworthy witnesses, it cannot be denied that Sievers had been charged with this task.

If it was justified to do away with Himmler, the accompanying and preparing scouting-activity was justified too.

Before answering the question to what extent Sievers could involve third persons, I have to sketch in a few lines the tactics of Hielscher and the position of Sievers.

It was not in vain that Hielscher himself gave full particulars on this question. We also heard other witnesses, Dr. Borkenau, Dr. Topf. Sievers clearly outlined his tasks. All this evidence is in such unanimous agreement that no doubt of its truth could arise.

Hielscher was one of the first and few people who realized that the way to take measures against the system could be only from within the ranks of the party itself. He had gained the firm conviction that a prospect of success could be seen only by doing away with the heads of the Nazi Government and assuming the government from the top and that nothing, nothing at all, was to be anticipated from a revolution of the people from below. A revolution of such a kind would have been of no avail, as it would very quickly have been stifled in torrents of blood.

The knowledge of these facts required four groups of measures to be taken, the particulars of which Hielscher detailed on 15 April:

Preparation of the undertaking by a well-camouflaged organization of trusted men and spies within the ranks of the NSDAP, i.e., the Trojan Horse policy.

Placing suitable courageous men in positions as near as possible to leading personages of Nazism, the most dangerous of whom was Himmler.

Doing away with Himmler and other leaders of the Nazi Government upon a given cue.

Taking over the government by an organization prepared in advance.

In spite of all liberty of action granted to the “activists” of his group, Hielscher had realized that success could only be expected if everybody, in strict discipline, obeyed his orders only. This was the only way for him to hold the reins and to give the cue at the right moment. Here I must emphasize that within the scope of this indispensable discipline, Sievers in all details acted in complete unison with Hielscher, that in all important moments he described the real state of affairs and asked for his instructions. In this way Hielscher obtained ample information of everything enacted around Sievers and of what Sievers did himself. Sievers was nothing but the tool in the hands of the leader of the movement. Therefore, your Honors, your verdict affects Sievers’ commissioner, Hielscher, in just the same way as Sievers himself. Hielscher is condemned together with Sievers, as he is acquitted with Sievers. With the same courage of responsibility with which he placed Sievers and other accomplices in most dangerous positions, Hielscher could declare at the end of his evidence that he not only took but also _claimed_ the whole responsibility for all the deeds with which his follower Sievers would be charged as a result in this trial.

Hielscher sketches the task of Sievers as follows: In the belly of the Trojan horse, i.e., under the color of eager and enthusiastic cooperation his duty would be (_a_) to scout and to spy, (_b_) profiting by his influence, to place other persons in similar positions for the same purposes, or in places where they would be given the possibility of working undisturbed, (_c_) to back endangered members of the resistance movement and if possible to rescue them, and finally (_d_) to do away with Himmler at the moment of action.

This last item was the essential point of the task of my client. All the other tasks were inferior to this aim and assignment, they only served to prepare and support it. It is from this point of view that his whole conduct must be understood and all his acts judged.

What did Sievers achieve in the sphere of this task?

I cannot reiterate all the details that I set forth in the first part of my plea. I came to the conclusion that Sievers did not make himself guilty of complicity or assistance in the facts charged in the indictment. If, however, you suppose with the prosecution that Sievers is to be found guilty of some of the counts of the indictment, it is my task to justify this conduct before the forum of a concept of justice transcending codified law, and to expound it to the Tribunal.

How did it come about that in 1942 Sievers remained in his position when the Ahnenerbe came into contact with medical experiments which possibly might assume a criminal character? We must not forget that Sievers was assigned the removal of Himmler and that in the Hielscher group he was the only person who could have been entrusted with such a task. Properly speaking, in Hielscher’s group he had the key position; the success or failure of the whole enterprise depended on him alone. For Himmler was the most dangerous personality in the Nazi system, because in his quality of Chief of the Police and Commander of the Reserve Army all the internal political armed forces were concentrated in his hand. Consequently he had the power of nipping in the bud every rebellion. Himmler was able to rule without Hitler, whereas Hitler could not rule without Himmler. The latter was to be done away with first. Should Himmler be overlooked or should he somehow succeed in escaping, the whole enterprise would be endangered. Himmler’s importance is therefore the measure of the importance of Sievers, who had to be ready for the decisive blow in Himmler’s immediate proximity. To ask if this post could be abandoned is to answer it in the negative.

As Sievers was fully conscious of the importance of such a decision, he became involved in the greatest internal conflict of his life. Of two evils, the worse had to be avoided and the smaller to be endured, or both of them to be shunned.

To do the latter would certainly have been the most convenient solution. That Sievers got into this conflict amply demonstrates his consciousness of responsibility, his love of justice and humanity. As to the struggle with his soul, he certainly did not succeed in getting the better of himself. Too many questions depended on his decision, not only for himself but above all for the resistance movement as a whole. We must try to look into the soul of a man, who, on the one hand, was exposed to the pressure of an enormous aversion to the approaching threatening events and, on the other hand, knew only too well that in his position he could no longer fulfill his task if he obeyed his personal impulses. Perhaps it would have been possible for Sievers to leave his office without creating a great sensation and without considerable disadvantage for himself. Could he not have retired to cooperate in some innocuous scientific research? But in doing so Sievers would have been a runaway, a deserter. In his agony of soul, Sievers applied to Hielscher who after mature consideration and deliberation came to the decision: _Sievers will stay!_

For the post in Himmler’s proximity could not be renounced. If Sievers abandoned it, Hielscher would be under the necessity of entrusting him with another position near Himmler or of replacing him by another member of the movement with the same task. Was this possible? Would he, remaining near Himmler, have not time and again come into the same dilemma? Was it possible to wait and see? Could it be expected that another man would be more successful? Would not Sievers, in spite of all circumspection, have raised suspicion in substantiating his withdrawal? For to do so openly and with protest would have been downright madness. Imagine only the danger he would have conjured up for himself and his associates! What could his withdrawal have availed? One more question: if Sievers’ withdrawal could have prevented the human experiments at all, that would have been only a partial success. For as to the aim in its totality, the removal of Himmler and the Nazi Government, nothing would have been gained but a further delay of the decision or the impossibility of achieving it because of the loss of the key position. As still more victims of the Nazi Government would have been the result, a partial success had to be sacrificed in favor of the great aim.

If you try to answer these questions there cannot be the least doubt that the decision Hielscher arrived at was the only possibility.

That brings me to the last, to the most important point of my defense, to the question:

“How was Sievers to act in his position?”

Without any doubt, he was compelled to make certain concessions. He was forced to camouflage, i.e., to accommodate himself outwardly to his surroundings which he was going to spy on and to remove. Every spy has to camouflage and I do not betray a secret in mentioning that in wartime many a man donned the uniform of the enemy. It is generally known that in 1942 the French General Giraud performed his escape from German captivity in the uniform of a German general.

When Sievers was a member of the party from 1929 to 1931, when later on he joined the NSDAP and the SS again, when he filled higher positions in these organizations, when he held the position of Reich Manager of the Ahnenerbe and suffered himself to be promoted to a higher rank in the SS, without any doubt at all that was part of the camouflage measures which Hielscher, Dr. Borkenau, Dr. Topf, and other witnesses call the indispensable prerequisite, the compulsory mask for the tasks of the defendant Sievers.

Nobody will pretend that these camouflages which were to render possible a legally approved, nay, desirable aim, are in themselves punishable and illegal. Sievers’ outward membership in the SS is therefore excused by its camouflage purpose. And it is equally unobjectionable that occasionally he played the part of a good Nazi. The duty of doing so had expressly been urged upon him by Hielscher. The career of the organizer or an active member of a German underground movement would have found a sudden end if he had not behaved like a Nazi.

All the more seriously must I turn to the question of Sievers’ consent to and further participation in the human experiments and the establishment of the collection of skeletons, in which third persons suffered bodily injury.

Here the question is raised where are the bounds of necessity if it involves actions which in themselves are punishable facts. The answer to this question is the essential point of the Sievers case.

The legal orders of the world set up the principle: “_The legal values damaged by the action committed under necessity, must not be of a disproportionally greater value than the protected and rescued legal value._” That is the principle of proportion concerning which Wharton [“Criminal Law”], paragraph 642, says, “Sacrifice of another’s life, excusable when necessary to save one’s own.”

What were the competing legal values in the Sievers case?

On the one hand, there was the civilization of the world, the peace of the earth, humanity, the lives and existence of millions of men threatened and hurt by Hitler’s criminal government. Such actions are called crimes against peace and humanity by the new international law which threatens them with the severest punishments. The Allied Nations considered these legal values worthy of their soldiers enthusiastically going to war and death for them.

On the other hand, you will find the lives of individuals, their bodily safety, the respect and esteem of their personality, their liberty and the free expression of their will, certainly legal values of no less high value. There may have been hundreds of victims. But it was a meager number in comparison with the multitudes that Hitler, Himmler, and their accomplices had already murdered and continued murdering.

My question runs: Which of the two contending legal values is more valuable from the point of view of proportion?

I am far from excusing the ghastly crimes that happened in the concentration camps or even minimizing them, but with all my abhorrence for them I cannot help answering: The protection of civilization and humanity deserves preference over the life and health of individuals, deplorable as the inevitable sacrifices may be. So finally it was necessary, absolutely requisite, to put up with the violation of the less valuable legal values and to rescue the more precious, the whole. Sievers’ remaining at his post in the Ahnenerbe was absolutely necessary for the removal of Himmler.

Of course it would not be difficult to state _post festum_ that Sievers could have acted differently, that he ought not have advanced thus far. But up to now nobody has been able to tell us _how_ he should have acted. Even the public prosecutor did not try to make a concrete proposal.

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_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT HOVEN_[5]

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In two further parts of my closing brief I dealt with the killings which Dr. Hoven either undertook himself or which were undertaken with his knowledge.

In part (b) of the closing brief, I stated that these killings had no connection with the euthanasia plan.

I further stated that it can be considered proved that Dr. Hoven killed only two prisoners himself, and that about 50 or 60 prisoners were killed by order of those responsible for the German and foreign political prisoners with the knowledge of Dr. Hoven.

I have set forth a legal evaluation of these killings in a further paragraph under (e) of the closing brief.

The legal arguments as set forth in the closing brief are taken from the work of the well-known American criminologist Wharton, _Criminal Law_. The first part of this argument contains, under (e), the literal quotations from this book.

According to common law, the killing of a man can be either murder, manslaughter, excusable homicide, or justifiable homicide. Excusable homicide and justifiable homicide are not punishable.

The present American law does not differentiate between justifiable homicide and excusable homicide. I refer to my closing brief, particularly to the statements of Wharton in his book _Criminal Law_, 12th edition, volume I, 1932, pages 826 to 879. According to Wharton, excuse and justification for a homicide are either repulsion of felonious assault, or prevention of felony.

The right of self-defense, i.e., repulsion of felonious assault, is restricted to a narrowly defined number of persons.

On the other hand, everybody is entitled to prevent a crime. I refer to the details contained in my legal arguments of my closing brief.

Killing a man to prevent a felonious crime requires the following conditions which are set forth in my closing brief:

(1) The perpetrator must have the bona fide belief that the commission of a felonious crime is immediately impending. It is not a condition that such a crime would actually have been committed. The bona fide belief of the accused is quite sufficient. In this connection I refer to the legal arguments of the closing brief.

(2) This belief of the accused must not be negligently adopted.

(3) There must not be any other possibility of preventing a crime than the killing of a person. In other words—the killing must be the only means available to prevent the crime.

The prosecution’s assertion in its final plea, “One must not kill five to save five hundred”, therefore, cannot be considered generally valid either from the point of view of German or American law.

On the basis of the statements of the prosecution, I have not been able to see clearly whether that sentence had reference only to the justification of experiments on human beings or else to the killings which were carried out by Dr. Hoven or with his knowledge.

The justification of the killings is materially distinguished from that of the experiments. Those spies, stool-pigeons, and traitors, for whose killing Dr. Hoven accepted responsibility when in the witness stand, had planned to commit serious crimes against their fellow prisoners. Therefore, if the three prerequisites which I mentioned are given, we are concerned with cases of justifiable or excusable homicide.

In my closing brief, I elaborately explained that these conditions existed in the case of all the killings for which Dr. Hoven accepted the responsibility.

The defendant Dr. Hoven had the conviction and good faith that the spies and traitors, who were killed by him or with his knowledge, were about to commit serious crimes, resulting in the death of numerous inmates of the Buchenwald concentration camp. During his examination on the witness stand, Dr. Hoven gave a thorough description of this.

The decision on these killings was not reached by Dr. Hoven alone. Dr. Hoven had no cause for that. It was not his life that was endangered by those spies or traitors. It was, on the contrary, the committee of political German and foreign prisoners, many of whom are today holding high office in their countries. Those persons guaranteed to Dr. Hoven that only such individuals would be killed who already had been active and would continue to be active as spies and as traitors. These statements by Dr. Hoven were expressly confirmed by a number of witnesses who were heard on this subject. These observations may be found in the affidavits I submitted. Above all it has been proven that only such people of whom Dr. Hoven held that conviction were done away with. Dr. Hoven testified to that effect and it has been reaffirmed by the witnesses Dorn, Dr. Kogon, Seegers, and Hummel.

In his interrogation of 23 October 1946, Dr. Hoven stated expressly that he killed or knew only of the killings of such persons of whom he was certain that their deaths were necessary to save the lives of a multitude of political prisoners from the various countries. At that early date he expressly emphasized that he refused to carry out any of the killing orders of the Camp Commander Koch; the prisoners who were covered by these orders were put into the hospital or hidden in some other way by Dr. Hoven.

Dr. Hoven had not negligently adopted the conviction that their killing was essential for the salvation of huge numbers of prisoners.

This is proved first of all by the testimony of the witness Dorn, who gave many details as to the means and methods employed by Dr. Hoven and the illegal camp administration in becoming convinced of the necessity for the killings. Dr. Hoven supplemented those statements. Furthermore, they were corroborated by the testimony of the witnesses Hummell, Dr. Kogon, Seegers, Philipp Dirk, Baron von Pallandt, and van Eerde through their affidavits.

Actually, the prevention of the planned crimes, i.e., the mass murder of a multitude of German and foreign political prisoners, could be accomplished only through the killing of the spies and traitors. There was no other means. What should Dr. Hoven have done to prevent the crimes planned by the spies and traitors? Those spies collaborated with the SS camp commanders to carry out Himmler’s program to destroy the political prisoners. To whom should Dr. Hoven have turned? Perhaps to the SS camp commanders who worked with the spies and traitors? Or perhaps to the Gestapo or to the police who worked under Himmler’s orders?

There was no other way but the one which Dr. Hoven chose in order to prevent crimes. I showed that with details in my closing brief. There I assembled the testimony of the witnesses for the prosecution and defense who were heard on this point.

Here, I merely wish to stress the following statements by witnesses:

In this courtroom, Dr. Kogon, a convinced Christian and a deeply religious man, said: “There was really no other possibility for the men of the illegal camp administration. I, as a convinced Christian, do not deny those men the right to have killed people in an emergency who in collaboration with the SS endangered the lives of individuals or of many.”

The witness Pieck stated: “It may be that the liquidation of many political prisoners and of SS spies employed in the camp may make Dr. Hoven a murderer in the eyes of many; yet, for me and others who understood the real situation he was a soldier fighting on our side and risking a great deal.”

Pieck expressed the same opinion also in a letter to the Dutch Ministry of Justice, a letter that was co-signed by the City Council of Amsterdam and Mr. Droering, head of a department of the State Institute for War Documentation in The Hague.

Pieck is one of the few who is best equipped to answer these questions, for he belonged to the committee of German and foreign political prisoners which formed itself at Buchenwald.

Father Katjetan, presently Supreme Abbot of one of the largest religious orders in Czechoslovakia, a former prisoner of the concentration camp Buchenwald, declared, in the presence of witness Dr. Horn, that those killings were an inevitable necessity for the preservation of the inmates who had been abandoned by justice in the camp.

Even the prosecution witness Roemhild had to admit on the stand that it would have been impossible to save 20,000 prisoners if those spies or traitors whom Dr. Hoven killed or of whose killing he knew had remained alive.

Let me ask in this connection: What would have happened if a man of Kushnir Kushnarev’s caliber had not been killed, and if the murder of the Russian prisoners of war in the Buchenwald camp had been continued? Would Dr. Hoven not stand before this Tribunal even then? Then, would not the same charge be made against Dr. Hoven as the one levelled against the Japanese Governor of the Philippines who was tried before an American Military Court for not having prevented atrocities and abuses?

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