d. Evidence
_Testimony_ Page Extract from the testimony of defendant Karl Brandt 29 Extracts from the testimony of defense witness Dr. Friedrich 30 Hielscher Extract from the testimony of prosecution expert witness Dr. 42 Andrew C. Ivy
EXTRACT FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[6]
_EXAMINATION_
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JUDGE SEBRING: Witness, this question of the necessity for an experiment, is it your view that it is for the state to determine the extreme necessity for such an experiment and that thereafter those who serve the state are to be bound by that procedure? I think you can answer that “yes” or “no”.
DEFENDANT KARL BRANDT: This trial shows that it will be the task of the state under all circumstances basically to clarify this question for the future.
Q. Witness, as I understood your statements a moment ago, they were that the physician, having once become the soldier, thereafter must subordinate such medical-ethical views as he may have when they are in conflict with a military order from higher authority, is that true?
A. I didn’t want to express it in that form. I did not mean to say that the physician, the moment he becomes a medical officer, should change his basic attitude as a physician. Such an order can in the very same way be addressed to a physician who is not a soldier. I was referring to the entire situation as it prevailed with us in Germany during the time of an authoritarian leadership. This authoritarian leadership interfered with the personality and the personal feelings of the human being. The moment an individuality is absorbed into the concept of a collective body, every demand which is put to that individuality has to be absorbed into the concept of a collective system. Therefore, the demands of society are placed above every individual human being as an entity, and this entity, the human being, is completely used in the interests of that society.
The difficult thing, and something which is hard to understand basically, is that during our entire period, and Dr. Leibbrandt referred to that, everything was done in the interests of humanity so that the individual person had no meaning whatsoever, and the farther the war progressed, the stronger did this principal thought appear. This was designated in the end as “total war,” and in accordance with that, the leaders of the state gave orders quite generally and demanded that orders be carried out. It was very tragic for a number of persons, not only within the framework of these experiments, but also in other situations that they had to work under such orders. Without considering the entire situation as it prevailed in Germany, one cannot understand the question of these particular experiments at all.
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EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS DR. FRIEDRICH HIELSCHER[7]
_DIRECT EXAMINATION_
DR. WEISGERBER: Witness, your name is Friedrich Hielscher?
WITNESS HIELSCHER: Friedrich Hielscher.
Q. You were born on 31 May 1902 in Plauen, and you are now living in Marburg, that is right?
A. Yes.
Q. What is your profession?
A. I am a scholar.
Q. And since when have you taken an active part in politics?
A. Since 1927.
Q. Did you belong to a definite political ideology?
A. No. I had a group of students to whom I expounded my historical and philosophical theories and ideas.
Q. How did it happen that you became an opponent of the NSDAP so early?
A. From the information available to me I knew the personal inferiority of the National Socialist leaders. I could observe that they were constantly lying and that what they really wanted was undesirable.
Q. Did you believe, as early as 1928, that the NSDAP would come to power?
A. No, not in 1928. In 1930, after the first election battle at which the Party was victorious, I considered it possible. In 1931 I considered it probable. In 1932 I felt that it was certain.
Q. Did you join any definite political party with the intention of combating the NSDAP?
A. No. I considered it impossible for any of the 33 German parties, with their bureaucratic methods, to be able to prevent a fascist dictatorship, or if it had come into existence, to overthrow it.
Q. What methods did you think were the right ones?
A. The fascist dictatorship is a mass machine in a technical age. Therefore it seemed to us to be out of the question, when confronting such a mass body, to act openly. It seemed impossible to carry out propaganda publicly. We were convinced that the only thing possible was to form very small cadres which would not be recognizable to an outsider and which at the proper time could be employed for a coup d’etat.
Q. Then that was more or less the method of the Trojan Horse?
A. Yes.
Q. Were you, in your ideas and in your efforts to combat this movement alone or did you have associates?
A. First, a selected group of my students were willing to collaborate in this illegal work; second, I knew quite a number of personages of various political backgrounds with whom I agreed that this regime would not last.
Q. That was before 1933?
A. That was around 1933—1932-33.
Q. Now came the 30th of January 1933, the so-called seizure of power, and now your real work began. How and when did you apply your method of the Trojan Horse?
A. This group of my students, who were willing to collaborate, I made into an illegal organization, with dues, secrecy, and other necessary conditions, and I appointed people who were willing and suitable to get into important Party positions.
Q. When and how did you meet the defendant Wolfram Sievers?
A. As far as I can recall, I met Sievers about 1929, on one of my historical-philosophical lecture trips. He was a Boy Scout at that time. He spoke up during the discussion and we took a liking to each other.
Q. Did Sievers show at that time that he was opposed to the NSDAP?
A. That was a matter of course with the people with whom I had anything to do at all.
Q. And did you consider him suitable to work in your circle?
A. Yes.
Q. In 1929 Sievers joined the NSDAP. Was that done with your knowledge?
A. Yes.
Q. Did you advise him to do so or how did it come about? There had to be some special reason, since you were both opponents of this political party.
A. That was the first time, aside from 1923, when the NSDAP was talked about, and it was useful to know what was going on in this growing machine—were there any people of good will within the machine, what were the leaders doing, what plans were being made, what organization was being set up.
Q. Then first of all you wanted to find out what intentions the NSDAP had?
A. Yes, and specifically in the youth work, because that had to be the most important in the long run.
Q. Now, in 1931 Sievers resigned from the NSDAP again; did he do that with your knowledge?
A. Yes.
Q. On your orders?
A. Yes, one might say that. We discussed it, and I considered it the thing to do.
Q. Now, why should he suddenly leave the Party since he had been sent into the Party with the definite purpose of getting information?
A. He had found out what he was to find out, the nature and the make-up, especially of the youth organization. It was just as inferior as we had thought, and even at that time it was so corrupt that without any further plan—and we had no plan at the time—without any further plan it was not necessary to have him continue.
Q. Now, in the year 1933, Sievers, as the Tribunal has already been told, again joined the NSDAP; was this also done on your behalf?
A. Yes. At that time we were already a thoroughly organized organization. We were already asking for volunteers, who were willing and who were capable of working up in the sense of the Trojan Horse. Sievers seemed suitable, and he was willing.
Q. Were you able to get him any position within the Party?
A. No. I was not able to help him to obtain any position, and in the second place I had no intention of telling the individual persons whom I trusted, in detail, what they were to do.
Q. Then it was up to the skill of the individual to get into a position from which he would be able to carry out the assignment which you gave him?
A. Yes.
Q. And how did Sievers obtain this position?
A. He got into this with Hermann Wirth in the Ahnenerbe.
Q. Who was Hermann Wirth?
A. Hermann Wirth was a rather crazy student of pre-history, who had excellent material and terrible concepts.
Q. Was Wirth already in contact with the Ahnenerbe at that time?
A. As far as I know he was one of the founders.
Q. Then, as you say, Sievers got in contact with Wirth, and through Wirth he got into the Ahnenerbe?
A. Yes. He was there from 1935 on as Reich Business Manager.
Q. Now, did you give Sievers any specific assignment in the spirit of your movement?
A. As soon as it was clear that there was a possibility of exploiting Himmler’s racial romancing and half-education, the assignment developed to gain Himmler’s confidence with the aid of the Ahnenerbe and to get as close to him as possible. We, that is my group, were among the people who very early recognized the special personal danger of Himmler, and in the second place from the beginning we had been determined that one day we would have to overthrow the Party regime by force, and for that purpose one has to get as close as possible to the most dangerous man.
Q. And what were the duties which Sievers had this time? When he first belonged to the NSDAP, you said he was to get information about the intentions of the youth movement of the NSDAP.
A. This time, of course, he had to get as many details as he could from the office of the Reich Leader SS, and transmit them to us. We had to protect people. We had to build up camouflage positions. We had to help the other people and in turn to remain unrecognized.
Q. And how did Sievers carry out these duties?
A. Well, it will be best if I begin with myself. I myself was known and considered undesirable by the Party leadership.
Q. You mean the NSDAP?
A. Well, yes, of course. The Party leaders knew me and considered me undesirable. I had already been under arrest and had had my house searched. I was watched by the Gestapo, and in order to build up my organization I needed to be able to travel anywhere without arousing suspicion. Consequently, Sievers gave me a fake research assignment, which was to study Indo-Germanic culture, customs of the annual festivals.
Q. Sievers said during direct examination that he himself could not issue any research assignments; you said that you received a fake research assignment from him; wasn’t this research assignment actually issued by the curator, Professor Wuest?
A. Yes. If things were going well, and Wuest was in a good mood, or had been drinking with Sievers, it was possible to persuade him to do something, and so he succeeded in persuading Wuest that I was efficient for this research assignment, and so I was given this assignment. And what concerned Indo-Germanic customs could be found anywhere. I was given a false pass as a section chief, though I was not a section chief, and was not a member of the SS nor the Ahnenerbe.
Q. And with this pass you were able easily to get visas to go abroad?
A. Not necessarily. I needed a little more for that purpose, but it was easier.
Q. Then the actual purpose of this fake research assignment was that you, who were a suspect, might appear in a more harmless light and would be able to move rather freely and without supervision?
A. Yes.
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Q. What did Sievers do in order to further the activities of your organization?
A. For instance, he took care of supplying all information which was of importance. He told us what troops of the Waffen SS were in Germany during the war. He gave us fake official trips and he worked out a plan for an assassination, which was to be carried through by our group in case the generals’ plan did not come off. We all thought it was not safe to rely on the generals. In March 1944, Werner Haften told me by order of Stauffenberg that one would have to take into account the fact that the generals would have to be moved into action by a certain assassination and everyone was to make his own preparations, in case he had any, in such a manner as if he was the only one active. That was the situation in March 1944. We worked out a substantial plan to remove, if possible, Himmler and Hitler simultaneously, but in case of doubt Himmler himself. We were of a completely different opinion there than the other groups.
Q. What concrete preliminary work was done for the assassination in your group?
A. Sievers was the only one in our group who came into question regarding that assassination because he was the only one so close to Himmler. He was therefore assigned this task and we worked out this matter as far as the detailed plan was concerned; all that was necessary now was to press the button.
Q. And for what period of time was this assassination intended?
A. We started our preparations in the year 1943, and we could have started at the earliest at the end of 1943. Then we finally thought of the middle of 1944 because Schulenburg and Luening told me that the generals would be ready around that time.
Q. Well, an assassination is a matter for quick decision. Is it not true, therefore, that all these long preparations that you are telling us about are rather surprising?
A. The following would have to be taken into consideration: Around Himmler and Hitler there was a strong guard, a strong ring of guards, through which none could get unless he was carefully searched and checked. Secondly, and that I already emphasized, one did not have to be quite sure that the generals would carry out that assassination, but one had to be sure that a sufficient number of generals were ready to remove the National Socialist system immediately after the assassination, for the elimination of just these two people would have no political purpose whatsoever. We did not intend to carry out a Putsch but we intended to remove a political system, a political order, and for that reason we had to wait until the situation became right and the generals were ready.
Q. Now, the question crops up whether these plans for the assassination of Hitler and Himmler were only in your fantasy, or the fantasy of your collaborators, or was there any real basis or concrete preparation for such assassination?
A. I already said that the preparations had been worked out in the detailed technical points insofar as the location, the shooting, etc., were concerned.
Q. And who would have assassinated Himmler and Hitler?
A. Sievers was to do that and a few young men belonging to my organization.
Q. And why was it in effect not carried out?
A. After the Stauffenberg assassination had failed, the Wehrmacht circles that came into question were eliminated by Himmler and therefore it was no longer possible to remove that system. The only consequence of any attempted assassination would have been—since the foreign political situation would not have changed—that the people would have said again, “This is the stab in the back for the victorious front line.”
Q. What did Sievers do to further your activity in addition to what you have already said?
A. He, for instance, supported my representative, Arnold Deutelmoser, when he was put on the list of those who were to be removed under the pretext of the assassination which took place in Munich at the Buergerbraeu. He also protected Bomas who was working in the Netherlands. He protected Dr. Schuettelkopf whom we had sent into the RSHA and it was possible for him in turn to send me to Sweden. He saved Niels Bor, Professor Seyb of Oslo University, and he saved a number of Norwegian students, etc.
Q. Do you know that Sievers informed you about Himmler’s double play in the case of the minister Popitz, and that as a consequence he saved that entire group against measures by Himmler?
A. Yes. The following thing happened. One day Sievers approached me and said that he had just heard Himmler ridicule in a close circle an attempt on the part of Popitz. He said that Minister Popitz with the mediation of the lawyer Lampe had approached Himmler and tried to persuade him to bring about a change of the National Socialist system, perhaps by removing Hitler. He said Himmler thought it was very funny that these men had so little sense as to think of him in that connection. Thank God one could enter negotiations with them because certainly nobody in the country was behind these people, but it did seem that these gentlemen had many foreign political relationships and it would be advisable to find out what in effect was behind it all and to enter into negotiations with them. We were quite surprised about the naive attitude shown by Himmler, and I sent Deutelmoser to Reichwein whom I knew had connections with Popitz. In that way Popitz was warned. Reichwein was so surprised and hardly wanted to believe the situation.
I was asked to participate in a conference, and Reichwein after having convinced himself that all of this was true promised to warn all of the gentlemen concerned in Berlin and then asked Deutelmoser, who was to go to Norway shortly thereafter to notify Reichwein’s friend, Stelzer, the present Minister President of Schleswig-Holstein, in order to see that he, too, took the necessary precautionary measures. In this way we hoped that a number of these people had actually been saved. Popitz, however, himself was careless and was captured.
Q. This conspiracy could not have been carried out unless you had the necessary financial means at your disposal. How did you get these means?
A. Everyone of our people, be it man or woman, had agreed to give up ten percent of their monthly income for that illegal work. Many gave a substantially larger sum.
Q. How about Sievers?
A. Sievers gave more than he had to.
Q. Do you know the case of the three hundred Norwegian students who on the basis of Sievers’ intervention were released from the concentration camp Buchenwald?
A. Yes. Terboven, or some other official in Norway, disliked some demonstration which occurred there, and as a result arrested three hundred students. Through some dark channels they were brought into the concentration camp at Buchenwald. Sievers found out about that, and if I remember correctly, he was in a position to see to it that these students were released from the concentration camp, making use of Himmler’s Nordic ideas to this end.
Q. In that case you think that Sievers’ activity was substantially important for your resistance movement?
A. Yes. That was true of my organization, for he protected and covered me as its chief, and, secondly, as far as I know, he was the only man belonging to any resistance movement who was as close as he to the Reich Leader SS. If any other group had brought any such information as he did, I would have noticed that it could have only come from the same source.
Q. Witness, I shall have a document handed to you which was submitted by the prosecution. This is Document NO-975, Prosecution Exhibit 479. It is a letter sent by Sievers to Dr. Hirt. Would you please look at that letter?
A. Yes.
Q. This letter contains a tone of voice which seems to indicate that he tried to cover Dr. Hirt’s activity. Dr. Hirt was working in the Anatomical Institute of the Strasbourg University. I assume, for reasons which we shall mention later, that you know Hirt’s name. How do you explain that tone in this letter?
A. I think that this is very proper and praiseworthy. I would have thought it very foolish of Sievers if he adopted any other tone in any of his official correspondence. It was his task to say “yes” but act in a negative way. There couldn’t have appeared any pretense of any disapproval on his part. The more active one had to be in an anti-National Socialist way, the more one had to speak in favor of National Socialism.
Q. I shall now turn to another complex of questions. Sievers is indicted in this trial as having participated in a number of crimes. Did Sievers at any time tell you about the so-called research assignments of Dr. Rascher and Dr. Hirt who was just mentioned? These were experiments carried out in the concentration camps.
A. Sievers, as far as I remember, came to me in the year 1942 and told me very excitedly that Himmler in his desire to extend the Ahnenerbe Society had embarked on the thought of including experiments on human beings in the work of the Ahnenerbe Society. He said that he did not succeed in frustrating that. He said that he had no desire whatsoever to participate in these horrible acts and asked me what to do. At that time we considered this horrible situation very thoroughly and thought of what we could do. It was quite clear to us what the SS intended here, and it was questionable whether responsibility could be assumed for any such acts, whether it would be advisable to be the instrument of Himmler if he embarked on any such acts, measures where human beings were degraded to the level of insects.
The following considerations proved to be decisive for us: If Sievers left, not one person, not one subject in these experiments would be saved. If Sievers stayed there as a technical secretary, he could throw sand into that machinery and would, perhaps, be in a position to save somebody. In addition, the entire plan and the entire overthrow of the Party stood or fell with Sievers staying at his post. The experiments on human beings were only part of this horrible Party system, and one had to concentrate on the decisive points in order finally to remove everything, and, as I have said before, there was no other way into the staff of the Reich Leader SS. We therefore concluded that if Sievers resigned because of that, it was sure that he would be eliminated and probably all the people he had ever entrusted with a research assignment, and everything that we had done so far would be lost if he left, and if anyone was to be saved at all, he could only be saved by Sievers remaining at his post.
Q. If I have understood you correctly, Sievers at first wanted to resign from his position as Reich Business Manager of the Ahnenerbe?
A. Yes. That is correct.
Q. Did Sievers approve of these arguments which you and your friends put forward in favor of his staying with the Reich Leader SS as the Reich Business Manager of the Ahnenerbe? Did he do it immediately or only after trying to persuade him for some time?
A. This took a number of days, because Sievers, according to his nature, was softer than many of us and did not want to agree with us. We finally had to appeal to his sense of duty and persuade him that he had to do it and that it was the only way.
Q. Among other matters, it was considered that by Sievers remaining at his post, there would be a possibility of mitigating these horrible experiments?
A. The chance wasn’t very great but we were convinced that this would be the only way possible, if at all. Then it could only be done in that manner. If I may say so, this was such a horrible situation that we always had to come back to it and we were very lucky at least to have the hope of saving a number of people. Other opponents of the SS system have told me about similar dilemmas which were just as difficult, and where the alternative was yet more horrible, and where persons, according to my belief and knowledge, acted correctly. If the Tribunal would permit me I could relate a few almost incredible situations which were even worse.
PRESIDING JUDGE BEALS: In what connection are these narrations, Witness?
WITNESS HIELSCHER: In connection with the question as to whether it was morally justifiable to enable Sievers to remain at his post.
PRESIDING JUDGE BEALS: Such matters as that would not be material in this inquiry.
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_CROSS-EXAMINATION_
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MR. HARDY: Now, what did Sievers ever tell you about the Sievers-Hirt skeleton collection? Did he ever tell you about that?
WITNESS HIELSCHER: Yes. He told me that Himmler had ordered—as far as I know, it was in connection with Jewish commissars who were under this terrible execution order which was valid in the East—that some of them were to be selected and used for the skeleton collection. The order was from Himmler, as Sievers reported to me.
Q. And did you know what they were going to do with these people?
A. Yes. It was the same as in the experiments. There a danger of death was a possibility; here it was certain.
Q. You knew, of course, that they were going to stand these people up, pick them out, select them according to size, take their anatomical measurements, then ship them to Natzweiler and at Natzweiler kill them, then deflesh them, then send the skeletons to the Strasbourg University for collection? And you knew that?
A. Yes.
Q. A fine thing for a resistance man to be involved in, isn’t it?
A. The situation, as I have said repeatedly, was as follows: We made no distinction in the real evaluation of the skeleton collection and other experiments in which there was this so-called “volunteering” and in which the result was the same—in our eyes, they were the same thing. I should like to emphasize one more thing. Does one have the moral right to tolerate a lesser evil in order to prevent a greater evil?
Q. Just a moment. Now in connection with the skeleton collection, do you further know that they dispensed with the idea of taking Jewish commissars but selected Jewish inmates of concentration camps?
A. Yes. What particular persons were selected I do not know, of course, but I knew that a number of Jews were to be gassed and were selected for this anthropological collection. That was the same case as in the Ghetto of Lodz. The Jewish commander of the Ghetto—that was Lieutenant Rosenblatt—after he had gained confidence in me because I had gone in with a false pass, said personally to me: “I was picked out by the SS. When a new group of Jews comes into this Ghetto of Lodz and crowds the Ghetto, I have to select exactly the same number of Jews and I know that they will be gassed. That is, I was selected by the SS to determine who is to be gassed. Now, I ask you in the name of God, Mr. Hielscher, you are a Christian, what am I to do? I had nothing to do with that. I have asked the Rabbis. I have asked the old people themselves, and we have come to the conclusion that I must stay in this office. At least I can determine the persons—I can at least select the oldest people who can’t stand life in a ghetto and perhaps, in this way, perhaps I will be able to save the life of one person. These two old people that I am telling you about were about seventy years old. There were five Christians among the Jews. At least I was able to see that these two old people were gassed together. They asked me to tell their daughter that we were able to achieve at least that. Tell me, did I do right or not?” That is still more horrible because the man could not even reduce the number. I was ashamed that the people who were in charge of this camp were called Germans. But I said: “You have acted right and you are justified in the eyes of God.”
Q. Now, Dr. Hielscher, I assume that the defense counsel has shown you all the documents concerning the skeleton collection. Is that right?
A. Yes.
Q. There won’t be any need for me to go over them. You have stated in connection with the one document that was presented to you today on the stand that this was a very praiseworthy act on the part of Sievers in a negative way. Since you are familiar with all the skeleton collection documents—I had intended to go into each one but I will just go into that one. That is Document NO-088, Prosecution Exhibit 182. This is a document which was written by Sievers. You will see that his signature appears thereon. Do you recognize the signature at the bottom of the letter?
A. Yes.
Q. Well, Sievers here is proposing a way in which they can destroy the skeleton collection so that it will not be known to any one—that is, to the Allies when they overrun Strasbourg. And you will notice, two-thirds of the way through, the one paragraph that states: “The viscera could be declared as remnants of corpses apparently left in the anatomical institute by the French.” You see that?
A. Yes.
Q. “In order to be cremated.” Now this is an idea of one Wolfram Sievers, wherein he is suggesting that these, or the results of these criminal activities be left so that they may, by the Allies, be blamed on to the French, and bearing in mind, of course that the French, as well as the United States, Great Britain, and other Allies were equally as interested as the resistance movements in defeating the Nazi regime, were they not?
A. I have already said that it was Sievers’ duty to say “yes” and to act negatively, but, of course, I did not praise this action, but I praised the vocabulary, the formulation. He spoke like a Nazi. The concrete question in such a case was simply as follows: Can anyone be saved here or not? If no one can be saved, what can I do to keep up the appearance of a Nazi since I know that Obersturmbannfuehrer Neuhaus suspects that I have some contact with the resistance movement? Sievers, since the 20th of July, or rather since my arrest, was constantly seeing to it that his actions looked like Nazi actions, insofar as no one was actually killed; that was part of his duty, part of the mask without which the organization could not operate.
Q. Yes. But from this letter does it not suggest that he was willing to allow an innocent Frenchman to answer for the crimes which flowed out of this skeleton collection activity?
A. If you show me—
Q. I have asked you—does it not appear from this letter, this letter signed by Sievers, that he was willing to allow a Frenchman to suffer for the crimes committed during the course of the collection of these skeletons?
A. Yes. The letter quite deliberately, I believe, creates this impression. That was the purpose of it, like all such letters.
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EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS DR. ANDREW C. IVY[8]
_CROSS-EXAMINATION_
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DR. SERVATIUS: Witness, take the following case. You are in a city in which the plague is raging. You, as a doctor, have a drug that you could use to combat the plague. However, you must test it on somebody. The commander, or let us say the mayor of the city, comes to you and says, “Here is a criminal condemned to death. Save us by carrying out the experiment on this man.” Would you refuse to do so, or would you do it?
WITNESS DR. IVY: I would refuse to do so, because I do not believe that duress of that sort warrants the breaking of ethical and moral principles. That is why the Hague Convention and Geneva Convention were formulated, to make war, a barbaric enterprise, a little more humane.
Q. Do you believe that the population of a city would have any understanding for your action?
A. They have understanding for the importance of the maintenance of the principles of medical ethics which apply over a long period of years, rather than a short period of years. Physicians and medical scientists should do nothing with the idea of temporarily doing good which, when carried out repeatedly over a period of time, would debase and jeopardize a method for doing good. If a medical scientist breaks the code of medical ethics and says, “Kill the person,” in order to do what he thinks may be good, in the course of time that will grow and will cause a loss of faith of the public in the medical profession, and hence destroy the capacity of the medical profession to do its good for society. The reason that we must be very careful in the use of human beings as subjects in medical experiments is in order not to debase and jeopardize this method for doing great good by causing the public to react against it.
Q. Witness, do you not believe that your ideal attitude here is more or less that of a single person standing against the body of public opinion?
A. No I do not. That is why I read out the principles of medical ethics yesterday, and that is why the American Medical Association has agreed essentially to those principles. That is why the principles, the ethical principles for the use of human beings in medical experiments, have been quite uniform throughout the world in the past.
Q. Then you do not believe that the urgency, the necessity of this city would make a revision of this attitude necessary?
A. No, not if they were in danger of killing people in the course of testing out the new drug or remedy. There is no justification in killing five people in order to save the lives of five hundred.
Q. Then you are of the opinion that the life of the one prisoner must be preserved even if the whole city perishes?
A. In order to maintain intact the method of doing good, yes.
Q. From the point of view of the politician, do you consider it good if he allows the city to perish in the interests of preserving this principle and preserving the life of the one prisoner?
A. The politician, unless he knows medicine and medical ethics, has no reason to make a decision on that point.
Q. But as a politician he must make a decision about what is to happen. Shall he coerce the doctor to carry out the experiment, or shall he protect the doctor from the rage of the multitude?
A. You can’t answer that question. I should say this, that there is no state of no politician under the sun that could force me to perform a medical experiment which I thought was morally unjustified.
Q. You then, despite the order, would not carry out the order, and would prefer to be executed as a martyr?
A. That is correct, and I know there are thousands of people in the United States who would have to do likewise.
Q. And do you not also believe that in thousands of cities the population would kill the doctor who found himself in that position?
A. I do not believe so because they would not know. How would they know whether the doctor had a drug that would or would not relieve? The doctor would not know himself, because he would have to experiment first.
Q. Witness, I put a hypothetical case to you. If we are to turn to reality other questions would arise. I simply want to hear now your general attitude to this problem. You are then of the opinion that a doctor should not carry out the order. Are you also of the opinion that the politician should not give such an order?
A. Yes. I believe he should not give such an order.
Q. Is this not a purely political decision which must be left at the discretion of the political leader?
A. Not necessarily. He should seek the best advice that he can obtain.
Q. If he is informed that this one experiment on this one prisoner would save the whole city, he may give the order despite the fact that the doctor does not wish to carry it out, is that what you think?
A. He could then give the order, but if the doctor still believed that it was contrary to his moral responsibilities, then the doctor should not carry out the order.
Q. That is another question, whether or not he carries it out, but in such cases you consider it is permissible to give that order, is that what I understood you to say?
A. After he has obtained the best advice on the subject which he can obtain.
Q. Then he can give the order. Yes or no?
A. Yes.
* * * * *
G. Subjection to Medical Experimentation as Substitute for Penalties
a. Introduction
Several of the defendants argued that medical experiments, alleged as criminal, upon concentration camp inmates were justified because they were a substitute for penalty or punishment previously imposed on the experimental subjects. Counsel for the defendant Gebhardt argued that the experimentation amounted to a complete pardon as sentences of death had been imposed and hence that the experimentation, not always deadly, saved human lives. The prosecution’s argument on this point is illustrated by an extract from the closing statement, set forth on pages 44 to 49. On this general question, selections have been taken from the closing brief for the defendant Karl Brandt and from the final plea of the defendant Gebhardt. These appear below on pages 49 to 56. The following selections from the evidence appear in pages 56 to 61: extract from the direct examination of the defendant Mrugowsky; cross-examination of the prosecution’s expert witness, Dr. Andrew C. Ivy.
b. Selection from the Argumentation of the Prosecution
_EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION_[9]
* * * * *
Another of the rather common defenses urged by the defendants is that the experimental subjects were criminals condemned to death who, provided they survived the experiment, were rewarded by commutation of their sentence to life imprisonment in a concentration camp. For one who has even the slightest knowledge of the conditions in concentration camps and the life expectancy of an average inmate, this alleged defense assumes the aspect of a ghastly joke. We need only recall the remark made by one of the women used by Rascher to reward his frozen victims in Dachau, who when asked by him why she had volunteered for the camp brothel, replied: “rather half a year in a brothel than half a year in a concentration camp.” But the defects in this spurious defense run much deeper. Concentration camps were not ordinary penal institutions, such as are known in other countries, for the commitment of persons convicted of crimes by courts. The very purpose of concentration camps was the oppression and persecution of persons who were considered undesirable by the Nazi regime on racial, political, and religious grounds. Hundreds of thousands of victims were confined to concentration camps because they were simply Jews, Slavs, or gypsies, Free Masons, Social Democrats, or Communists. They were not tried for any offense and sentenced by a court, not even a Nazi court. They were imprisoned on the basis of “protective custody orders” issued by the RSHA. Tens of thousands were condemned to death on the single order of Himmler, who, as Gebhardt put it so well, “had the power to execute thousands of people by a stroke of his pen.” (_Tr. p. 4025._) There were, indeed, a relatively small group of inmates who might be classed as ordinary criminals. These were men who had served out their sentences in an ordinary prison and then were committed to concentration camps for still further detention. A memorandum of 18 September 1942 by Thierack, the Minister of Justice, concerning a conversation with Himmler, tells us the fate of those unfortunates:
“The delivery of anti-social elements from the execution of their sentence to the Reich Leader SS to be worked to death. Persons under protective arrest, Jews, gypsies, Russians and Ukrainians, Poles with more than 3-year sentences, Czechs and Germans with more than 8-year sentences, according to the decision of the Reich Minister for Justice.” (_654-PS, Pros. Ex. 562._)
The proof in this case has demonstrated beyond all doubt that so-called criminals sentenced to death were very rarely used in any of the experiments. True it is that Himmler said prisoners condemned to death should be used in those high-altitude experiments where the long-continued activity of the heart after death was observed by the experimenters. He was generous enough to say that if such persons could be brought back to life, then they were to be “pardoned” to concentration camp for life. But even this unique amnesty had no application to Russians and Poles, who were used exclusively in those experiments.
But, assuming for the moment, that this alleged defense might have a mitigating effect under some circumstances, it certainly has no application to this case. Be it noted that this is an affirmative defense by way of avoidance or mitigation. There has been no proof whatever that criminals sentenced to death by an ordinary court could possibly be executed in a concentration camp. Such matters were within the jurisdiction of the Ministry of Justice, not Himmler and the SS. The experimental subjects we are dealing with are those that Himmler could condemn by a “stroke of his pen.” If the inmate used in the experiments was condemned for merely being a Jew, Pole, or Russian, or, for example, having had sexual intercourse with a Jew, it does not answer the criminal charge to say that the victim was doomed to die. Experimentation on such a person is to compound the crime of his initial unlawful detention as well as to commit the additional crime of murder or torture. As has been said by another tribunal, “Exculpation from the charge of criminal homicide can possibly be based only upon bona fide proof that the subject had committed murder or any other legally recognized capital offense; and, not even then, unless the sentencing tribunal with authority granted by the state in the constitution of the court declared that the execution would be accomplished by means of a low-pressure chamber.”[10]
In this connection, it might be noted that German law recognized only three methods of execution, namely, by decapitation, hanging, and shooting. (_German Penal Code, Part I, Section 13; Reichsgesetzblatt [Reich Law Gazette], 1933, Part I, p. 151_; _Reichsgesetzblatt 1939,