d. Evidence

_Testimony_ Page Extract from the testimony of defendant Mrugowsky 56 Extract from the testimony of prosecution expert witness Dr. 60 Andrew C. Ivy

EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[14]

_DIRECT EXAMINATION_

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DR. FLEMMING: You know that General Taylor, in his opening speech, said that this experiment with aconitine had not been conducted in order to find an antidote to aconitine but in order to ascertain how long it takes to kill a human being in this manner. Please tell the Tribunal whether this concerned an experiment.

DEFENDANT MRUGOWSKY: This was not an experiment in the actual sense of the word. It was the legal execution of five thieves, and some special facts were to be ascertained during this execution. The details were as follows: One day the chemist of the Reich Criminal Police Office, Dr. Wittmann, came to me. He asked me to attend an execution as the official doctor. As the reason for this request he added that in the General Government in Poland a high official had been injured when he was attacked with a revolver; that the bullet had inflicted only a harmless flesh wound, but nevertheless the person had died after a few hours with symptoms of poisoning. The person who had attacked him had been arrested, and the rest of the ammunition was a hollow ball which contained a crystallized poison. The Chemical Institute of the Reich Criminal Police Office tested this and found that it was aconitine. The ammunition was of Russian origin. There is no aconitine in Germany; it is imported. The question was whether this was the first case of the beginning of poison warfare against Germany. We had been expecting such a method of warfare for some time. For that reason there was not only criminal interest in clearing up this case but a general interest of the greatest importance. This ammunition was to be tested on five thieves who were to be executed anyhow, and it was to be seen whether this crystallized poison contained another poison which had not been found in the chemical tests. The remainder of the original Russian ammunition was to be used, and also German ammunition which had been made in imitation of the Russian. At the same time—and this was the main purpose of the experiment—it was to be discovered how much time would elapse between the injury and the appearance of the symptoms of poisoning, in order, if necessary, to be able to use an antidote. This question was of such great importance because an antidote to aconitine is hardly known, and if this had actually been the beginning of poison warfare, then efforts would have to be made immediately to find an antidote. Therefore, the head of the Reich Criminal Police Office asked me, and the Chief of the Criminal Technical Office also asked me, to participate in the execution myself, although that was not actually my work; but Dr. Wittmann said he did not know of any toxicologist except one in Berlin; they had all been drafted, and as a bacteriologist I had a certain amount of experience in symptoms of poisoning connected with bacteria and, therefore, he asked me to take over this job. I was rather unwilling to do so. I pointed out to Dr. Wittmann that the regular police in Vienna had a pharmacologist who was very experienced and I suggested that he should be called upon; but this was not done because of the poor communications resulting from the air warfare. Since, on the other hand, this question was doubtless of great significance and should not be postponed, I finally declared myself willing to fulfill this request. In accordance with the purpose of this job, I made not only the usual report, but a rather more detailed report on the symptoms of poisoning. There is the report which we have here in this prosecution document.

Q. You have said that this ammunition which was captured was of Russian production. How can that be proved?

A. The prosecution itself proved that. To this Document NO-201, Prosecution Exhibit 290, some files were attached which were not included in my report. There are three drawings of cross-sections of these bullets which were made and handed in to the Institute. The heading is “Poison bullet from a Russian pistol, calibre 7.65” and details about the construction of this bullet.

Q. You say that this photostatic copy of the drawings of the bullet was not part of your report. How is that shown? Will you compare the stamps in the diary?

A. The report which I handed in is dated 12 September 1944, and then the next day it was received by the Criminal Technical Office, and the receipt stamp carried the number “Secret 53”. The drawings, however, have a different secret journal number, that is, 15-1944. If the number G-53 was in September then, if the distribution of letters received is assumed to be even throughout the year, I should assume that the Reich Criminal Police Office received these drawings in March of the same year. At that time I did not know anything about this attack, and the experiment had not been started yet. Nor did I know any details about the possibility of such poison warfare.

Q. Who was present at the execution?

A. Dr. Ding, who happened to be in Berlin and whom I took with me in order to support my observations; it was he who conducted the actual medical examination. I, myself, merely ascertained the occurrence of death. Also Dr. Wittmann, representing the Criminal Technical Institute; also a representative of the camp commandant, I believe the adjutant; and an Untersturmfuehrer who performed the execution, that is, actually shot the people. It is possible that there were others whom I do not remember and whose names I do not know.

Q. Did you investigate in any way who these people were who were executed, and by what court they had been condemned to death?

A. I talked with the people; they understood German; they were apparently Germans. I considered them ethnic Germans [Volksdeutsche] of whom we had large numbers in Germany at that time. On the other hand, I knew that in concentration camps executions were carried out, and I had been told that this was an official matter and that there had to be an official representative of the camp commandant present. The fact that such a representative was present at this execution was sufficient for me to assume that the matter actually was official and, on the other hand, I had no opportunity to be informed of the sentence or anything like that.

Q. Then you did not see the death sentence order before it was carried out?

A. No. I did not have the opportunity because the doctor is merely called in to an execution to ascertain when death occurs, but I am convinced that it was not my duty to examine the sentence order, for I had nothing to do with the actual execution. The order was given by the representative of the camp commandant; someone who was attached to the commandant’s office actually shot the people, and I was merely there to ascertain when death occurred and to note the symptoms of poisoning, but Dr. Ding did the latter for me. The official information from a high authority was sufficient proof to me for the legality of the execution.

Q. In the case of two of the five thieves, the poison had no effect. You saw the suffering of the other three from the poison; why did you not shorten this suffering?

A. The sight of this execution was one of the most horrible experiences of my life. On the other hand, I could not shorten the symptoms for in the first place there was no antidote against aconitine available. If it is in the circulation, then there is no possibility of removing it. In the second place, it was the express purpose to find out how long the symptoms of poisoning last in order in later cases to be able to use an antidote, which it was hoped would soon be discovered.

Q. Did you know that executions in Germany can only be carried out by shooting, by hanging, or by beheading, and did you not have any misgivings when this execution was carried out in a different way?

A. I am not a jurist; I do not know the methods of execution. On the other hand, I have already said that in my opinion the state itself has the right to determine the method of death for its citizens in wartime and doubtless has the right to determine the method of an execution. Here the suspicion had arisen that poison war was beginning against Germany. This seemed to be supported by the finding of poison Russian ammunition. Since the investigations were carried out by the highest authorities in the Reich, I had no doubt about the juridicial admissibility upon which I, as a doctor, had no influence.

PRESIDING JUDGE BEALS: Witness, were each of these men struck by more than one bullet or only by one bullet each?

DEFENDANT MRUGOWSKY: Each one was shot only once in the thigh; two of these five persons were immediately killed by another shot, because the first shot of the poison ammunition had hit the artery in the thigh and their suffering was immediately stopped; but the others had only flesh wounds and after a certain period of time, symptoms of poisoning appeared; that was three people.

DR. FLEMMING: Did you have anything else to do with the previous history of this execution?

MRUGOWSKY: No.

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EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS DR. ANDREW C. IVY[15]

_CROSS-EXAMINATION_

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DR. SERVATIUS: Mr. President, I should like to ask your permission to put to the witness a small newspaper notice from the newspaper “The People” of 3 March 1946. This is an English newspaper. Regarding the defendants before the IMT, the following was stated: “The opinion of some people is that they should be condemned very soon.” Then it says: “Others believe that they should be made to expiate their crimes by helping to cure cancer, leprosy, and tuberculosis as experimental subjects.”

Is the thought of atonement contained therein?

WITNESS DR. IVY: Yes, but it is expressed in a hysterical manner.

Q. Yes. I agree with you.

Witness, do you believe that if a person does not volunteer for an experiment, the state can order such atonement?

A. No.

Q. Do you not believe that you can expect something of a prisoner that goes beyond his actual sentence if at the same time people outside prison are subject to such burdens?

A. No. Those ideas were given up many years ago in the science and study of penology. The primary objective of penology today is reformative, not punitive, not expiative.

Q. Witness, is that the recognized theory of penology throughout the whole world today?

A. It may not be the recognized theory throughout the whole world today, but it is the prevailing theory in the United States. There is one other aspect that is quite large and essential, and that is the protective aspect of imprisonment to protect society from a habitual criminal.

Q. Witness, if a soldier at the front is exposed to an epidemic and can be almost certain that he will catch typhus and deserts and hides behind the protecting walls of a prison, would you not consider it justifiable if he is persuaded to volunteer for an experiment that concerns itself with typhus?

A. Will you read the question again?

Q. If a soldier deserts from the front where typhus is raging for fear that he too will contract typhus and prefers to be imprisoned in order thus to save himself, do you think it is right for him to be persuaded while he is serving his sentence to subject himself to a typhus experiment?

A. As a volunteer? Yes.

Q. I see. And would you not take a step further, if this prisoner says, “No, I refuse, because if I do this there wouldn’t have been any point in my deserting; I deserted in order to save myself. My buddies may die but I would just prefer not to.”

A. The answer to that question is no.

Q. Don’t you admit that one can hold a different view in this matter?

A. Yes, but I don’t believe it could be justified.

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H. Usefulness of the Experiments

a. Introduction

Both by testimony and argument the defense claimed that the medical experiments had generally been useful in furthering medical science, that in some cases the experiments alleged as criminal had increased the speed of the progress of medical science, and that in some cases there was no other alternative for the development of medical science except to conduct experiments on human beings. The prosecution, in addition to arguing that voluntary participation by the subject of experimentation was a prerequisite of legal experiments, argued that the experiments turned out to be entirely useless for medical science and human progress, and that in some cases it was doubtful if considerations of medical science played any controlling role in the decision to conduct the experiments.

Selections from the defense argumentation have been made from the final pleas for the defendants Becker-Freyseng and Beiglboeck. Extracts from these final pleas appear below on pages 62 to 64. A part of the opening statement of the prosecution (vol. I, p. 37 ff.) was devoted to this topic. Defense evidence on the usefulness of the experiments has been selected from the direct examination of the defendants Mrugowsky and Rose. Extracts from their testimony appear below on pages 66 to 70.

b. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT BECKER-FREYSENG_[16]

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At the moment I consider one factor above all to be material. It is the following question: Was everything done, when the sea-water experiments were being planned, to furnish all data required for establishing the necessity of the experiments? And I think I can definitely answer this question in the affirmative.

The defense has proved the high sense of responsibility applied to the inquiry on the necessity of the sea-water experiments. Scientists of international reputation, like Professor Dr. Eppinger and Professor Heubner, were consulted, and they definitely answered this question in the affirmative. More cannot be expected or demanded in the way of a sense of responsibility. In my opinion, the mere fact that these scientists were asked their opinion on the issue in question shows that everything was done on the part of the Chief of the Medical Service of the Luftwaffe and his office to reach the right decision in this question.

With regard to the purely objective judgment of the sea-water experiments and their necessity, I should like to refer to the statements made in my closing brief for Dr. Becker-Freyseng.

At this point, I should, however, like to add the following: The prosecution has tried to make out that it was the purpose of these sea-water experiments to decide whether Berkatit removes the salt from sea water. This contention of the prosecution has in no way been proved. I must stress here again, most emphatically, that this was never the purpose of the sea-water experiments.

All people concerned realized that Berkatit does not remove the salt from sea water. The question which was to be clarified and which necessitated the experiments was rather the following: Under the action of the vitamins contained in Berkatit, will the kidneys be capable of producing a urine with a higher sodium chloride concentration than is normally the case? Dr. Eppinger answered this question neither in the affirmative nor in the negative; he stated that this question could be decided only by experiment.

In addition there was another question to be decided, as to whether in case of shipwreck it would be more desirable to endure thirst, or whether marooned fliers should be advised to drink small quantities of salt water. In 1942-1944 this question was also raised in the United States and England and there, too, human experiments were carried out. But all these individual questions were only part of the great issue of how shipwrecked persons could be helped to escape the agony and danger of dying from thirst. These issues were the basis for the experiments conducted in 1944. In my opinion it is not admissible to construe arbitrarily another issue today and to contend on the basis of such issue, which never existed, that these experiments were not necessary. These medical issues alone necessitated the experiments. There were other issues too, to which I want to make short reference.

Until 1944 the world lacked an agent to make sea water drinkable. Such an agent was an absolute necessity. Nobody denied even then that Wofatit, developed by the defendant Schaefer, would have been an ideal agent for this purpose. It was, however, equally clear that this agent could only be manufactured by withdrawing the necessary raw material, namely silver, from other war-essential uses.

Furthermore, it was not denied that Berkatit did not require critical raw materials in the same measure. Another circumstance to be considered was that Berkatit could have been produced in existing plants, whereas it would have been necessary to erect new plants for the production of Wofatit. Accordingly, these technical reasons favored the introduction of Berkatit. It can hardly be denied that it was necessary for a medical officer conscious of his responsibilities in war to consider these reasons when reaching a decision. Incidentally, the expert of the prosecution, Professor Ivy, also stated that these reasons were definitely worthy of consideration.

Accordingly it had to be clarified, whether Berkatit could not, after all, be introduced for distribution to persons facing the risk of shipwreck, and the inquiry into this question was all the more necessary as, according to the opinion of Professor Eppinger and Professor Heubner, Berkatit apparently contained vitamins which eliminated the risks incurred by human beings when drinking sea water. Whether the opinion of the experts, Heubner and Eppinger, was right or not, could, at that time as today, only be established by experiment.

Hence if the defendant Dr. Becker-Freyseng, who examined all these factors and applied all precautions possible, became convinced in 1944 that the experiments could not be avoided, and if, from this viewpoint, in his official capacity as a consultant (Referent) he reported to his highest authority at that time, Professor Dr. Schroeder, that he considered the experiments necessary, then, in my opinion, he can in no way be charged under criminal law on that account.

Therefore, in my opinion, it has been proved that Dr. Becker-Freyseng considered these experiments necessary and that he was entitled to consider them necessary. And this question alone can be made the basis for an inquiry into his guilt under criminal law.

With regard to this point, I would like in conclusion to refer to the testimony of Professor Dr. Vollhardt. This world-famous physician, this research scientist, recognized as such in international circles, upon whom, only a few weeks ago, on the occasion of his 75th birthday, the highest German decoration of science was bestowed, namely the Goethe Medal for Art and Science, a ceremony in which nearly all European countries, also America, joined, stated before this high Tribunal, and I quote:

“I regarded it as sign of a sense of responsibility that in view of the increasing number of flying accidents, the sea-emergency question was taken up and these experiments were launched.”

Insofar, I consider it proved that the planning of these experiments was in no way objectionable.

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_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT BEIGLBOECK_[17]

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Even medical science on both sides had to assist warfare. I have before me the index of the best known scientific English periodicals from the war period, “The Lancet” and “Nature”. Now, after the war, General T. J. Betts of the United States War Department and Professor W. T. Sinsteat of the British Supply Office declared that the captured German scientific results accomplished during the war were of the greatest use for the economic progress of British and American industry. Even the terrible freezing experiments of Dr. Rascher proved to be of greatest use for America in the war against Japan. (_Becker-Freyseng 31, Becker-Freyseng Ex. 18._)