Judgment, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No 10. Vol. 2: United States of America v. Karl Brandt, et .al. (Case 1: 'Medical Case'). US Government Printing Office, District of Columbia: 1949. pp. 171-297.
Military Tribunal I was established on 25 October 1946 under General Orders No. 6 issued by command of the United States Military Government for Germany. It was the first of several military tribunals constituted in the United States Zone of Occupation pursuant to Military Government Ordinance No. 7, for the trial of offenses recognized as crimes by Law No. 10 of the Control Council for Germany.
By the terms of the order which established the Tribunal and designated the undersigned as members thereof, Military Tribunal I was ordered to convene at Nuernberg, Germany, to hear such cases as might be filed by the Chief of Counsel for War Crimes or his duly designated representative.
On 25 October 1946 the Chief of Counsel for War Crimes lodged an indictment against the defendants named in the caption above in the Office of the Secretary General of Military Tribunal at the Palace of Justice, Nuernberg, Germany. A copy of the indictment in the German language was served on each defendant on 5 November 1946. Military Tribunal I arraigned the defendants on 21 November 1946, each defendant entering a plea of "not guilty" to all the charges preferred against him.
The presentation of evidence to sustain the charges contained in the indictment was begun by the prosecution on 9 December 1946. At the conclusion of the prosecution's case in chief the defendants began the presentation of their evidence. All evidence in the case was concluded on 3 July 1947. During the week beginning 14 July 1947 the Tribunal heard arguments by counsel for the prosecution and defense. The personal statements of the defendants were heard on 19 July 1947 on which date the case was finally concluded.
The trial was conducted in two languages - English and German. It consumed 139 trial days, including 6 days allocated for final arguments and the personal statements of the defendants. During the 133 trial days used for the presentation of evidence 32 witnesses gave oral evidence for the prosecution and 53 witnesses, including the 23 defendants, gave oral evidence for the defense. In addition, the prosecution put in evidence as exhibits a total of 570 affidavits, reports, and documents; the defense put in a total number of 901 - making a grand total of 1471 documents received in evidence.
Copies of all exhibits tendered by the prosecution in their case in chief were furnished in the German language to the defendants prior to the time of the reception of the exhibits in evidence.
Each defendant was represented at the arraignment and trial by counsel of his own selection.
Whenever possible, all applications by defense counsel for the procuring of the personal attendance of persons who made affidavits in behalf of the prosecution were granted and the persons brought to Nuernberg for interrogation or cross-examination by defense counsel. Throughout the trial great latitude in presenting evidence was allowed defense counsel, even to the point at times of receiving in evidence certain matters of but scant probative value.
All of these steps were taken by the Tribunal in order to allow each defendant to present his defense completely, in accordance with the spirit and intent of Military Government Ordinance No. 7 which provides that a defendant shall have the right to be represented by counsel, to cross-examine prosecution witnesses, and to offer in the case all evidence deemed to have probative value.
The evidence has now been submitted, final arguments of counsel have been concluded, and the Tribunal has heard personal statements from each of the defendants. All that remains to be accomplished in the case is the rendition of judgment and the imposition of sentence.
The Jurisdiction of the Tribunal
The jurisdiction and powers of this Tribunal are fixed and determined by Law No. 10 of the Control Council for Germany. The pertinent portions of the Law with which we are concerned provide as follows:
1. Each of the following acts is recognized as a crime:
* * *
"(b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
"(c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
"(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.
"2. Any person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in * * * this Article, if he (a) was a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime * * *.
"4. (a) The official position of any person, whether as He of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.
"(b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation."
The indictment in the case at bar is filed pursuant to these provisions.
The indictment is framed in four counts.
COUNT ONE -- The Common Design or Conspiracy. The first count of the indictment charges that the defendants, acting pursuant to a common design, unlawfully, wilfully, and knowingly did conspire and agree together to commit war crimes and crimes against humanity, as defined in Control Council Law No. 10.
During the course of the trial the defendants challenged the first count of the indictment, alleging as grounds for their motion the fact that under the basic law the Tribunal did not have jurisdiction to try the crime of conspiracy considered as a separate substantive offense. The motion was set down for argument and duly argued by counsel for the prosecution and the defense. Thereafter, in one of its trial sessions the Tribunal granted the motion. That this judgment may be complete, the ruling made at that time is incorporated in this judgment. The order which was entered on the motion is as follows:
"It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.
"Count I of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of count I from the indictment, but, insofar as count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.
"This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10."
COUNTS TWO AND THREE -- War Crimes and Crimes against Humanity. The second and third counts of the indictment charge the commission of war crimes and crimes against humanity. The counts are identical in content, except for the fact that in count two the acts which are made the basis for the charges are alleged to have been committed on "civilians and members of the armed forces [of nations] then at war with the German Reich [* * *] in the exercise of belligerent control", whereas in count three the criminal acts are alleged to have been committed against "German civilians and nationals of other countries." With this distinction observed, both counts will be treated as one and discussed together.
Counts two and three allege, in substance, that between September 1939 and April 1945 all of the defendants "were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving medical experiments without the subjects' consent * * * in the course of which experiments the defendants committed murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts." It is averred that "such experiments included, but were not limited to" the following:
"(A) High-Altitude Experiments. From about March 1942 to about August 1942 experiments were conducted at the Dachau concentration camp, for the benefit of the German Air Force, to investigate the limits of human endurance and existence at extremely high altitudes. The experiments were carried out in a low-pressure chamber in which the atmospheric conditions and pressures prevailing at high altitude (up to 68000 feet) could be duplicated. The experimental subjects were placed in the low-pressure chamber and thereafter the simulated altitude therein was raised. Many victims died as a result of these experiments and others suffered grave injury, torture, and ill-treatment. The defendants Karl Brandt, Handloser, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Ruff, Romberg, Becker-Freyseng, and Weltz are charged with special responsibility for and participation in these crimes.
"(B) Freezing Experiments. From about August 1942 to about May 1943 experiments were conducted at the Dachau concentration camp, primarily for the benefit of the German Air Force, to investigate the most effective means of treating persons who had been severely chilled or frozen. In one series of experiments the subjects were forced to remain in a tank of ice water for periods up to 3 hours. Extreme rigor developed in a short time. Numerous victims died in the course of these experiments. After the survivors were severely chilled, rewarming was attempted by various means. In another series of experiments, the subjects were kept naked outdoors for many hours at temperatures below freezing. * * * The defendants Karl Brandt, Handloser, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Becker-Freyseng, and Weltz are charged with special responsibility for and participation in these crimes.
"(C) Malaria Experiments. From about February 1942 to about April 1945 experiments were conducted at the Dachau concentration camp in order to investigate immunization for and treatment of malaria. Healthy concentration camp inmates were infected by mosquitoes or by injections of extracts of the mucous glands of mosquitoes. After having contracted malaria the subjects were treated with various drugs to test their relative efficacy. Over 1000 involuntary subjects were used in these experiments. Many of the victims died and others suffered severe pain and permanent disability. The defendants Karl Brandt, Handloser, Rostock, Gebhardt, Blome, Rudolf Brandt, Mrugowsky, Poppendick, and Sievers are charged with special responsibility for and participation in these crimes.
"(D) Lost (Mustard) Gas Experiments. At various times; between September 1939 and April 1945 experiments were conducted at Sachsenhausen, Natzweiler, and other concentration camps for the benefit of the German Armed Forces to investigate the most effective treatment of wounds caused by Lost gas. Lost is a poison gas which is commonly known as mustard gas. Wounds deliberately inflicted on the subjects were infected with Lost. Some of the subjects died as a result of these experiments and others suffered intense pain and injury. The defendants Karl Brandt, Handloser, Blome, Rostock, Gebhardt, Rudolf Brandt, and Sievers are charged with special responsibility for and participation in these crimes.
"(E) Sulfanilamide Experiments. From about July 1942 to about September 1943 experiments to investigate the effectiveness of sulfanilamide were conducted at the Ravensbrueck concentration camp for the benefit of the German Armed Forces. Wounds deliberately inflicted on the experimental subjects were infected with bacteria such as streptococcus, gas gangrene, and tetanus. Circulation of blood was interrupted by tying off blood vessels at both ends of the wound to create a condition similar to that of a battlefield wound. Infection was aggravated by forcing wood shavings and ground glass into the wounds. The infection was treated with sulfanilamide and other drugs to determine their effectiveness. Some subjects died as a result of these experiments and others suffered serious injury and intense agony. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Genzken, Gebhardt, Blome, Rudolf Brandt, Mrugowsky, Poppendick, Becker-Freyseng, Oberheuser, and Fischer are charged with special responsibility for and participation in these crimes.
"(F) Bone, Muscle, and Nerve Regeneration and Bone Transplantation Experiments. From about September 1942 to about December 1943 experiments were conducted at the Ravensbrueck concentration camp, for the benefit of the German Armed Forces, to study bone, muscle, and nerve regeneration, and bone transplantation from one person to another. Sections of bones, muscles, and nerves were removed from the subjects. As a result of these operations, many victims suffered intense agony, mutilation, and permanent disability. The defendants Karl Brandt, Handloser, Rostock, Gebhardt, Rudolf Brandt, Oberheuser, and Fischer are charged with special responsibility and participation in these crimes.
"(G) Sea-Water Experiments. From about July 1944 to about September 1944 experiments were conducted at the Dachau Concentration camp, for the benefit of the German Air Force and Navy, to study various methods of making sea water drinkable. The subjects were deprived of all food and given only chemically processed sea water. Such experiments caused great pain and suffering and resulted in serious bodily injury to the victims. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Becker-Freyseng, Schaefer, and Beiglboeck are charged with special responsibility for and participation in these crimes.
"(H) Epidemic Jaundice Experiments. From about June 1943 to about January 1945 experiments were conducted at the Sachsenhausen and Natzweiler concentration camps, for benefit of the German Armed Forces, to investigate the causes of, and inoculations against, epidemic jaundice. Experimental subjects were deliberately infected with epidemic jaundice, some of whom died as a result, and others were caused great pain and suffering. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Rose, and Becker-Freyseng are charged with special responsibility for and participation in these crimes.
"(I) Sterilization Experiments. From about March 1941 to about January 1945 sterilization experiments were conducted at the Auschwitz and Ravensbrueck concentration camps, and other places. The purpose of these experiments was to develop a method of sterilization which would
be suitable for sterilizing millions of people with a minimum of time and effort. These experiments were conducted by means of X-ray, surgery, and 2 various drugs. Thousands of victims were sterilized and thereby suffered great mental and physical anguish. The defendants Karl Brandt, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Brack, Pokorny, and Oberheuser are charged with special responsibility for and participation in these crimes.
"(J) Spotted Fever (Fleckfieber) [A more correct translation is typhus, see vol. I, p. 13.] Experiments. From about December 1941 to about February 1945 experiments were conducted at the Buchenwald and Natzweiler concentration camps, for the benefit of the German Armed Forces, to investigate the effectiveness of spotted fever and other vaccines. At Buchenwald, numerous healthy inmates were deliberately infected with spotted fever virus in order to keep the virus alive; over 90% of the victims died as a result. Other healthy inmates were used to determine the effectiveness of different spotted fever vaccines and of various chemical substances. In the course of these experiments 75% of the selected number of inmates were vaccinated with one of the vaccines or nourished with one of the chemical substances and, after a period of 3 to 4 weeks, were infected with spotted fever germs. The remaining 25% were infected without any previous protection in order to compare the effectiveness of the vaccines and the chemical substances. As a result, hundreds of the persons experimented upon died. Experiments with yellow fever, smallpox, typhus, paratyphus A and B, cholera, and diphtheria were also conducted. Similar experiments with like results were conducted at Natzweiler concentration camp. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Genzken, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Rose, Becker-Freyseng, and Hoven are charged with special responsibility for and participation in these crimes.
"(K) Experiments with Poison. In or about December 1943 and in or about October 1944 experiments were conducted at the Buchenwald concentration camp to investigate the effect of various poisons upon human beings. The poisons were secretly administered to experimental subjects in their food. The victims died as a result of the poison or were killed immediately in order to permit autopsies. In or about September 1944 experimental subjects were shot with poison bullets and suffered torture and death. The defendants Genzken, Gebhardt, Mrugowsky, and Poppendick are charged with special responsibility for and participation in these crimes.
"(L) Incendiary Bomb Experiments. From about November 1943 to about January 1944 experiments were conducted at the Buchenwald concentration camp to test the effect of various pharmaceutical preparations on phosphorus burns. These burns were inflicted on experimental subjects with phosphorus matter taken from incendiary bombs, and caused severe pain, suffering, and serious bodily injury. The defendants Genzken, Gebhardt, Mrugowsky, and Poppendick are charged with special responsibility for and participation in these crimes."
In addition to the medical experiments, the nature and purpose of which have been outlined as alleged, certain of the defendants are charged with criminal activities involving murder, torture, and ill-treatment of non-German nationals as follows:
"7. Between June 1943 and September 1944 the defendants Rudolf Brandt and Sievers * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the murder of civilians and members of the armed forces of nations then at war with the German Reich and who were in the custody of the German Reich in exercise of belligerent control. One hundred twelve Jews were selected for the purpose of completing a skeleton collection for the Reich University of Strasbourg. Their photographs and anthropological measurements were taken. Then they were killed. Thereafter, comparison tests, anatomical research, studies regarding race, pathological features of the body, form and size of the brain, and other tests were made. The bodies were sent to Strasbourg and defleshed.
"8. Between May 1942 and January 1944 [Indictment originally read "January 1943" but was amended by a motion filed with the Secretary General. See Arraignment, vol. I, p. 22.] the defendants Blome and Rudolf Brandt * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the murder and mistreatment of tens of thousands of Polish nationals who were civilians and members of the armed forces of a nation then at war with the German Reich and who were in the custody of the German Reich in exercise of belligerent control. These people were alleged to be infected with incurable tuberculosis. On the ground of insuring the health and welfare of Germans in Poland, many tubercular Poles were ruthlessly exterminated while others were isolated in death camps with inadequate medical facilities.
"9. Between September 1939 and April 1945 the defendants Karl Brandt, Blome, Brack, and Hoven * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the execution of the so-called 'euthanasia' program of the German Reich in the course of which the defendants herein murdered hundreds of thousands of human beings, including nationals of German-occupied countries. This program involved the systematic and secret execution of the aged, insane, incurably ill, of deformed children, and other persons, by gas, lethal injections, and diverse other means in nursing homes, hospitals, and asylums. Such persons were regarded as 'useless eaters' and a burden to the German war machine. The relatives of these victims were informed that they died from natural causes, such as heart failure. German doctors involved in the 'euthanasia' program were also sent to the eastern occupied countries to assist in the mass extermination of Jews."
Counts two and three of the indictment conclude with the averment that the crimes and atrocities which have been delineated"constitute violations of international conventions * * *, the laws and customs of war, the general principles of criminal law as derived from the
criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of Article II of Control Council Law No. 10."
COUNT FOUR - Membership in Criminal Organization: The fourth count of the indictment alleges that the defendants Karl Brandt, Genzken, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Brack, Hoven, and Fischer are guilty of membership in an organization declared to be criminal by the International Military Tribunal, in that each of these named defendants was a member of the SCHUTZSTAFFELN DER NATIONAL SOZIALISTISCHEN DEUTSCHEN ARBEITERPARTEI (commonly known as the SS) after 1 September 1939, in violation of paragraph 1 (d) Article II of Control Council Law No. 10.
Before turning our attention to the evidence in the case we shall state the law announced by the International Military Tribunal with reference to membership in an organization declared criminal by the Tribunal:
"In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf Verbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called riding units * * *.
"The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes. The basis of this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organizations enumerated in preceding paragraph prior to 1 September 1939."
The Proof as to War Crimes and Crimes Against Humanity
Judged by any standard of proof the record clearly shows the commission of war crimes and crimes against humanity substantially as alleged in counts two and three of the indictment. Beginning with the outbreak of World War II criminal medical experiments on non-German nationals, both prisoners of war and civilians, including Jews and "asocial" persons, were carried out on a large scale in Germany and the occupied countries. These experiments were not the isolated and casual acts of individual doctors and scientists working solely on their own responsibility, but were the product of coordinated policy-making and planning at high governmental, military, and Nazi Party levels, conducted as an integral part of the total war effort. They were ordered, sanctioned, permitted, or approved by persons in positions of authority who under all principles of law were under the duty to know about these things and to take steps to terminate or prevent them.
Permissible Medical Experiments
The great weight of the evidence before us is to the effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study. All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:
1. The voluntary consent of the human subject is absolutely essential.
This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.
The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.
2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.
4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.
8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.
Of the ten principles which have been enumerated our judicial concern, of course, is with those requirements which are purely legal in nature - or which at least are so clearly related to matters legal that they assist us in determining criminal culpability and punishment. To go beyond that point would lead us into a field that would be beyond our sphere of competence. However, the point need not be labored. We find from the evidence that in the medical experiments which have been proved, these ten principles were much more frequently honored in their breach than in their observance. Many of the concentration camp inmates who were the victims of these atrocities were citizens of countries other than the German Reich. They were non-German nationals, including Jews and "asocial persons", both prisoners of war and civilians, who had been imprisoned and forced to submit to the tortures and barbarities without so much as a semblance of trial. In every single instance appearing in the record, subjects were used who did not consent to the experiments; indeed, as to some of the experiments, it is not even contended by the defendants that the subjects occupied the status of volunteers. In no case was the experimental subject at liberty of his own free choice to withdraw from any experiment. In many cases experiments were performed by unqualified persons; were conducted at random for no adequate scientific reason, and under revolting physical conditions. All of the experiments were conducted with unnecessary suffering and injury and but very little, if any, precautions were taken to protect or safeguard the human subjects from the possibilities of injury, disability, or death. In every one of the experiments the subjects experienced extreme pain or torture and in most of them they suffered permanent injury, mutilation, or death, either as a direct result of the experiments or because of lack of adequate follow-up care.
Obviously all of these experiments involving brutalities, tortures, disabling injury, and death were performed in complete disregard of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, and Control Council Law No. 10. Manifestly human experiments under such conditions are contrary to "the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience."
Whether any of the defendants in the dock are guilty of these atrocities is, of course, another question.
Under the Anglo-Saxon system of jurisprudence every defendant in a criminal case is presumed to be innocent of an offense charged until the prosecution, by competent, credible proof, has shown his guilt to the exclusion of every reasonable doubt. And this presumption abides with a defendant through each stage of his trial until such degree of proof has been adduced. A "reasonable doubt" as the name implies is one conformable to reason -- a doubt which a reasonable man would entertain. Stated differently, it is that state of a case which, after a full and complete comparison and consideration of all the evidence, would leave an unbiased, unprejudiced, reflective person, charged with the responsibility for decision, in the state of mind that he could not say that he felt an abiding conviction amounting to a moral certainty of the truth of the charge.
If any of the defendants are to be found guilty under counts two or three of the indictment it must be because the evidence has shown beyond a reasonable doubt that such defendant, without regard to nationality or the capacity in which he acted, participated as a principal in, accessory to, ordered, abetted, took a consenting part in, or was connected with plans or enterprises involving the commission of at least some of the medical experiments and other atrocities which are the subject matter of these counts. Under no other circumstances may he be convicted
Before examining the evidence to which we must look in order to determine individual culpability, a brief statement concerning some of the official agencies of the German Government and Nazi Party which will be referred to in this judgment seems desirable.
The Medical Service in Germany
Adolf Hitler was the head of the Nazi Party, the German Government, and the German Armed Forces. His title as Chief of the Government was "Reich Chancellor". As Supreme Leader of the National Socialist German Workers' Party, commonly called the NSDAP or Nazi Party, his title was "Fuehrer". As head of Germany's armed military might he was "Supreme Commander in Chief of the German Armed Forces [Supreme Commander of the German Armed Forces], or Wehrmacht".
The staff through which Hitler controlled the German Armed Forces was known as the "Supreme Command of the Wehrmacht" (OKW). The chief of this staff was Field Marshal Wilhelm Keitel.
Under the Supreme Command of the Wehrmacht were the Supreme [High] Commands of the Army, Navy, and Air Force. The Supreme [High] Command of the Navy (OKM) was headed by Grand Admiral Karl Doenitz. The Supreme [High] Command of the Army (OKH) was headed by Field Marshal Walter von Brauchitsch until December 1941, and thereafter by Hitler himself. The Supreme [High] Command of the Air Force (OKL) was headed by Reich Marshal Hermann Goering.
Each of the three branches of the Wehrmacht maintained its own medical service.
Army Medical Service. The defendant Handloser was the head of the Army Medical Service from 1 January 1941 to 1 September 1944. While in this position he served in two capacities, namely, as Army Medical Inspector and as Army [Heeres] Physician. These positions required the maintenance of two departments, each separate from the other. At one time or another there were subordinated to Handloser in these official capacities the following officers, among others: Generalarzt Professor Schreiber and Professor Rostock; Oberstabsaerzte Drs. Scholz, Eyer, Bernhard Schmidt and Craemer; Oberstabsaerzte Professor Gutzeit and Professor Wirth; Stabsarzt Professor Kliewe and Professor Killian, and Stabsarzt Dr. Dohmen. Under his supervision in either or both of his official capacities were the Military Medical Academy, the Typhus and Virus Institute of the OKH at Cracow [Krakow] and Lemberg [Lvov], and the Medical School for Mountain Troops at St. Johann.
Luftwaffe Medical Service. From the beginning of the war until 1 January 1944 Hippke was Chief of the Medical Service of the Luftwaffe. On that date the defendant Schroeder succeeded Hippke and remained in that position until the end of the war.
Subordinated to Schroeder as Chief of the Medical Service of the Luftwaffe were the following defendants: Rose, who was consulting medical officer on hygiene and tropical medicine; Weltz, who was chief of the Institute for Aviation Medicine in Munich; Becker-Freyseng, a consultant for aviation medicine in Schroeder's office; Ruff, the chief of the Institute for Aviation Medicine in the German Experimental Institute for Aviation in Berlin; Romberg, Ruff's chief assistant, who toward the end of the war attained the position of a department head at the Institute; Schaefer, who, in the summer of 1942, was assigned to the staff of the Research Institute for Aviation Medicine in Berlin to do research work on the problem of sea emergency; and Beiglboeck, a Luftwaffe officer who performed medical experiments on concentration camp inmates at Dachau in July 1944 for the purpose of determining the potability of processed sea water.
Under Schroeder's jurisdiction as Chief of the Luftwaffe Medical Service was the Medical Academy of the Luftwaffe at Berlin.
SS Medical Service. One of the most important branches of the Nazi Party was the Schutzstaffel of the NSDAP, commonly known as the SS. Heinrich Himmler was chief of the SS with the title of Reichsfuehrer SS, and on his personal staff, serving in various and sundry official capacities was the defendant Rudolf Brandt.
The SS maintained its own medical service headed by a certain Dr. Grawitz, who held the position of Reich Physician SS and Police.
Medical Service of the Waffen SS. The SS branch of the Nazi Party, in turn, was divided into several components, of which one of the most important was the Waffen, or Armed, SS. The Waffen SS was formed into military units and fought at the front with units of the Wehrmacht. Such medical units of the Waffen SS as were assigned to the field, became subordinated to the Medical Service of the Army, which was supervised by Handloser.
The Chief of the Waffen SS Medical Service was the defendant Genzken. His immediate superior was Reich Physician SS and Police Grawitz.
Six other defendants in the dock were members of the Medical Service of the SS, under Grawitz, namely; Gebhardt, who in 1940 became surgical adviser to the Waffen SS and who in August 1943 created and took over the position of chief clinical officer of the Reich Physician SS and Police; Mrugowsky, who became Chief of the Hygiene Institute of the Waffen SS under Genzken in November 1940, and when the Institute was taken from Genzken's supervision on 1 September 1943 and placed under direct subordination to Grawitz, remained as chief; Poppendick, who in 1941 was appointed Chief Physician of the Main Race and Settlement Office in Berlin and who in 1943 also became chief of the personal staff of the Reich Physician SS and Police; Hoven, who from the beginning of 1941 until July 1942, served as the assistant, and from then to September 1943, as chief physician at the Buchenwald concentration camp; Fischer, an assistant physician to the defendant Gebhardt; and finally the defendant Oberheuser, who in December 1940 became a physician at the Ravensbrueck concentration camp, and thereafter, from June 1943 until the end of the war, served as an assistant physician under the defendant Gebhardt at Hohenlychen.
Cvilian Medical Service. Throughout the war the Civilian Medical Services of the Reich were headed by a certain Dr. Leonardo Conti. Conti had two principal capacities (1) he was the State Secretary for Health in the Ministry of the Interior of the Government; in this capacity he was a German civil servant subordinated to the Minister of the Interior - first Wilhelm Frick and later, Heinrich Himmler; (2) he was the Reich Health Leader of the Nazi Party; in this capacity he was subordinated to the Nazi Party Chancellery, the Chief of which was Martin Bormann. In his capacity as Reich Health Leader, Conti had as his deputy the defendant Blome.
Reorganization of Wehrmacht Medical Service. In 1942 a reorganization of the various medical services of the Wehrmacht was effected. By a Fuehrer decree of 28 July 1942, Handloser became Chief of the Medical Services of the Wehrmacht, while at the same time retaining his position as Chief Physician of the Army and Army Medical Inspector. Under the decree referred to, Handloser was given power and authority to supervise and coordinate "all tasks common to the Medical Services of the Wehrmacht, the Waffen SS and the organizations and units subordinate or attached to the Wehrmacht." He was also commanded "to represent the Wehrmacht before the civilian authorities in all common medical problems arising in the various branches of the Wehrmacht, the Waffen SS and organizations and units subordinate or attached to the Wehrmacht" and "to protect the interests of the Wehrmacht in all medical measures taken by the civilian authorities."
Handloser thus became supreme medical leader in the military field, as was Conti in the civilian health and medical service.
By a subsequent Fuehrer decree of 7 August 1944 Handloser was relieved of his duties as Chief Physician of the Army and Army Medical Inspector, but retained his position as Chief of the Wehrmacht Medical Service.
By the decree of 28 July 1942 pursuant to which Handloser became Chief of the Medical Services of the Wehrmacht, the defendant Karl Brandt became empowered, subordinate only to, and receiving instructions directly from, Hitler "to carry out special tasks and negotiations to readjust the requirements for doctors, hospitals, medical supplies, etc., between the military and the civilian sectors of the Health and Medical Services." The decree also directed that Brandt "is to be kept informed about the fundamental events in the Medical Service of the Wehrmacht
and in the Civilian Health Service" and "is authorized to intervene in a responsible manner."
A subsequent decree issued 5 September 1943 extended the powers of the defendant Karl Brandt by providing:By a later decree of 25 August 1944 Karl Brandt was made Reich Commissioner for Sanitation and Health for the duration of the war; the decree providing:"The plenipotentiary for the Medical and Health Services * * * is charged with centrally coordinating and directing the problems and activities of the entire Medical and Health Service according to instructions. In this sense this order applies also to the field of medical science and research, as well as to the organizational institutions concerned with the manufacture and distribution of medical material. The plenipotentiary for the Medical and Health services is authorized to appoint and commission special deputies for this sphere of action.""In this capacity his office ranks as highest Reich Authority" and he is "authorized to issue instructions to the offices and organizations of the State, Party, and Wehrmacht which are concerned with the problems of the medical and health services."
Thus, by this series of decrees, the defendant Karl Brandt, within this sphere of competence, became the supreme medical authority of the Reich subordinate to no one but Hitler.
Three of the defendants are not physicians.
The first is the defendant Brack who became subordinated to Bouhler at the time the latter was appointed Chief of the Chancellery of the Fuehrer, in 1934, and remained with Bouhler throughout the war.
The second is the defendant Rudolf Brandt who, from the time he joined the staff of Himmler in 933, served for a twelve-year period in varying capacities. At first Rudolf Brandt was a mere clerk in the staff of the Reichsfuehrer SS but by 1936 had risen to chief of the personal staff of Himmler. In 1938 or 1939 he became Himmler's liaison officer to the Ministry of the Interior and particularly to the Office of the Secretary of the Interior. When Himmler became Minister of the Interior in 1943 Rudolf Brandt became Chief of the Ministerial Office; when Himmler became President of the Ahnenerbe Society, Rudolf Brandt became liaison officer between Himmler and the Reich Secretary of the Ahnenerbe Society, defendant Wolfram Sievers.
The third is the defendant Sievers, who was a member of Himmler's personal staff and Reich Business Manager of the Ahnenerbe Society from 1 July 1935 until the end of the war.
The Ahnenerbe Society
The Ahnenerbe Society, of which Sievers was Reich Business Manager, was in existence as an independent entity as early as 1933. On 1 July 1935 the Ahnenerbe became duly registered as an organization to conduct or further "research on the locality, mind, deeds and heritage of the Northern race of Indo-Germans and to pass on the results of this research to the people in an interesting manner." On 1 January 1942 the Society became part of the personal staff of the Reichsfuehrer SS and thereby a section of the SS. Its management was composed of Heinrich Himmler as President, Professor Dr. Wuest, Rector of the University of Munich, as Curator, and the defendant Sievers as Reich Business Manager. Subsequently, during the same year, the Institute of Military Scientific Research was established as a part of the Ahnenerbe. Its purposes are defined in a letter written by Himmler to Sievers, which directed the following with reference to the Ahnenerbe:
In its judgment, the International Military Tribunal made the following findings of fact with reference to the Ahnenerbe:"1. To establish an Institute for Military Scientific Research.
"2. To support in every possible way the research carried out by SS Hauptsturmfuehrer Professor Dr. Hirt and to promote all corresponding research and undertakings.
"3. To make available the required apparatus, equipment, accessories and assistants, or to procure them.
"4. To make use of the facilities available in Dachau.
"5. To contact the Chief of the SS Economic and Administrative Main Office with regards to the costs which can be borne by the Waffen SS."
We shall now discuss the evidence as it pertains to the cases of the individual defendants."Also attached to the SS main offices was a research foundation known as the Experiments Ahnenerbe. The scientists attached to this organization are stated to have been mainly honorary members of the SS. During the war an institute for military scientific research became attached to the Ahnenerbe which conducted extensive experiments involving the use of living human beings. An employee of this institute was a certain Dr. Rascher, who conducted these experiments with the full knowledge of the Ahnenerbe, which were subsidized and under the patronage of the Reichsfuehrer SS who was a trustee of the foundation" [Trial of the Major War Criminals, vol. I, p. 269, Nuernberg, 1947.].
The evidence conclusively shows that the German word "Fleckfieber" which is translated in the indictment as "spotted fever" is more correctly translated by "typhus." This is admitted, and in this judgment, in accord with the evidence, we use the word typhus instead of "spotted fever."