a. Introduction
Defendants who were in high positions in the German medical service rejected responsibility for the alleged criminal conduct of their subordinates. The prosecution argued that it “would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, instigators, and organizers go free.” The prosecution, for example, argued that Karl Brandt held supreme authority over all medical services in Germany, both military and civilian; that Handloser was the Chief of the Medical Services in the Wehrmacht; that Rostock was Karl Brandt’s deputy charged with the task of “centrally coordinating and directing the problems and activities of the entire medical and health service” in the field of science and research; that Schroeder was the Chief of the Medical Service of the Luftwaffe; that Genzken was the Chief of the Medical Service of the Waffen SS; that Blome was the Deputy Reich Health Leader; and that these men were clearly responsible for the acts of their subordinates in their respective sectors.
The prosecution’s summation of evidence on this question has been taken from the closing statement which appears below on pages 926 to 936. Extracts from the final pleas for the defendants Karl Brandt, Schroeder, Rostock, and the closing briefs for Handloser, Genzken, and Blome appear on pages 936 to 957.
b. Selection from the Argumentation of the Prosecution
EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION[[139]]
The Responsible Leaders of the Medical Services
In view of the clear and overwhelming proof, it can only be concluded that the practice of experimentation on concentration camp inmates without their consent was an organized and systematic program. It is, therefore, appropriate to consider whether we have in this dock the leaders of the German medical services without whom these crimes would not have been possible. It would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, organizers, and instigators go free. It has been established beyond controversy that these things could not have happened without cover from the top. Who, then, were these men on the top? Their survivors, with one exception, are all in this dock.
In the number one seat we have the defendant Karl Brandt. He held supreme authority over all the medical services in Germany, both military and civilian. He joined the Nazi Party in January 1932 and the SS in 1934, in which he rose to the rank of Gruppenfuehrer [Major General]. In the latter year, at the age of 30, he became the attending physician to Adolf Hitler and retained this position until 1945. His close personal relationship to the Fuehrer explains his rapid rise to power. On the day Poland was invaded in 1939, Hitler ordered Brandt and Philipp Bouhler, the Chief of the Chancellery of the Fuehrer, to carry out the so-called Euthanasia Program.
Aside from his personal influence and intimate connection with Hitler, Brandt’s greatest power in the medical services came from his position as General Commissioner and later Reich Commissioner of the Health and Medical Services. As a result of the disastrous winter campaign in the East in 1941, Hitler established for the first time a medical and health official under his direct control by decree of 28 July 1942. This decree made Brandt the supreme authority over all medical services in Germany. It stated in part as follows:
“I empower Professor Dr. Karl Brandt, subordinate only to me personally and receiving his instructions directly from me, 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.
My plenipotentiary for Health and Medical Services is to be kept informed about the fundamental events in the Medical Services of the Wehrmacht and in the Civilian Health Service. He is authorized to intervene in a responsible manner.” (NO-080, Pros. Ex. 5.)
By the same decree chiefs were also commissioned for the Medical Services of the Wehrmacht and the Civilian Health Service. The defendant Handloser became Chief of the Medical Services of the Wehrmacht, while Dr. Leonardo Conti, State Secretary for Health and the Reich Health Leader, was made Chief of the Civilian Health Services. Brandt was the superior of both Handloser and Conti, and through them had extensive powers over the Army, Navy, Luftwaffe, Waffen SS, and Civilian Medical Services. Brandt stood at the apex of power. He was subordinated to no one save the Fuehrer. He was the man to act for the Fuehrer in medical matters. The decree authorized Brandt “to intervene in a responsible manner” and directed that he be kept informed of “fundamental events”. Certainly nothing could be more fundamental than a policy of performing medical experiments involving the torture and death of involuntary human subjects.
On 5 September 1943 Hitler issued a second decree empowering Brandt “with centrally coordinating and directing the problems and activities of the entire medical and health services * * *”. (NO-081, Pros. Ex. 6.) The order expressly stated that Brandt’s authority covered the field of medical science and research. Shortly following the issuance of this decree, the defendant Rostock was appointed by Brandt as Chief of the Office for Science and Research, with plenary powers in that field.
Finally, on 25 August 1944, the Fuehrer elevated Brandt to Reich Commissioner for the Health and Medical Services and stated that in this capacity “his office ranks as highest Reich authority.” Brandt’s position was thus equivalent to that of a Reich Minister. He was 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”. (NO-082, Pros. Ex. 7.) It is clear that this decree was issued to resolve a struggle for power between Brandt and Conti. Certainly the decree does no more than give Brandt a more august title and restate his powers, powers which he had already received as early as July 1942. Brandt testified that it merely “strengthened” his position. A service regulation issued by Keitel for Handloser, as Chief of the Medical Services of the Wehrmacht, at a time when Brandt was still General Commissioner, provided that Handloser was subject to the “general rules of the Fuehrer’s Commissioner General for the Medical and Health Services” and that Brandt had to be informed of the “basic events” in the field of the Medical Services of the Wehrmacht. In a pretrial affidavit the defendant Handloser stated that after he became Chief of the Medical Services of the Wehrmacht on 28 July 1942 “Brandt was my immediate superior in medical affairs.” (NO-443, Pros. Ex. 10.) Schroeder stated that “Karl Brandt, Handloser, and Rostock were informed of the medical research work conducted by the Luftwaffe.” (NO-449, Pros. Ex. 130.) In addition to his position as General and Reich Commissioner of the Health and Medical Services, Brandt was also a member of the Presidential Council of the Reich Research Council, an organization which gave financial support for criminal experiments.
In the number two seat is the defendant Handloser who held supreme power over the medical services of all branches of the Wehrmacht. Early in 1941 he was appointed Army Medical Inspector and Army Physician [Army Medical Chief (Heeresarzt)]. He held these positions until September 1944 and as such had complete command over the entire Army Medical Services which was by far the largest of the medical branches of the Wehrmacht. In his capacity as Army Medical Inspector, Handloser had subordinated to him the Consulting Physicians of the Army, the Military Medical Academy, the Typhus and Virus Institutes of the OKH at Krakow and Lemberg [Lvov], and the Medical School for Mountain Troops at St. Johann. He attained the rank of Generaloberstabsarzt, the highest military medical rank.
On 28 July 1942, Handloser was elevated to the newly created position of Chief of the Medical Services of the Wehrmacht. This was the same decree which appointed Brandt General Commissioner, to whom Handloser, on the military side, and Conti, on the civilian side, were subordinated. Handloser was charged with the coordination of the Medical Services of the Wehrmacht and all organizations and units subordinated or attached to the Wehrmacht, including the Medical Services of the Waffen SS. Prior to this decree there were four separate medical branches of the Wehrmacht, the Army, Luftwaffe, Navy, and Waffen SS, each operating independently of the other. Pursuant to this decree, Handloser was appointed to coordinate and unify their operations and was directly responsible to Keitel as Chief of the Supreme Command of the Wehrmacht (OKW). He had authority over the Chiefs of the Army, Navy, Luftwaffe, and Waffen SS Medical Services, and all organizations and services employed within the framework of the Wehrmacht, and over “all scientific medical institutes, academies, and other medical institutions of the services of the Wehrmacht and of the Waffen SS.” [Emphasis added.] (NO-227, Pros. Ex. 11.) He was the adviser of the Chief of the Supreme Command and of the Wehrmacht in all questions concerning the medical services of the Wehrmacht and of its health guidance. In the field of medical science, his duties were to carry out uniform measures in the field of health guidance, research and combating of epidemics, and all medical matters which required a uniform ruling among the Wehrmacht, and further, in the evaluation of medical experiences.
One of the principal means used by the defendant Handloser in coordinating scientific research was the joint meeting of consulting physicians of the four branches of the Wehrmacht. At the Second Meeting East of Consulting Physicians in December 1942 at the Military Medical Academy, Handloser himself pointed out quite clearly the task of the Chief of the Medical Services of the Wehrmacht in unifying medical scientific research. In addressing the full meeting he said:
“The demands and extent of this total war, as well as the relationship between needs and availability of personnel and material, require measures, also in military and medical fields, which will serve the unification and unified leadership. It is not a question of ‘marching separately and battling together’, but marching and battling must be done in unison from the beginning in all fields.
“As a result, with respect to the military sector, the Wehrmacht Medical Service and with it the Chief of the Medical Services of the Wehrmacht came into being. Not only in matters of personnel and material—even as far as this is possible in view of special fields and special tasks which must be considered—but also with a view to medical scientific education and research, our path in the Wehrmacht Medical Service must and will be a unified one. Accordingly, the group of participants in this Second Work Conference East, which I have now opened, is differently composed from the First Work Conference in May of this year. Then it was a conference of the army; today the three branches of the Wehrmacht, the Waffen SS and Police, the Labor Service and the Organization Todt are participating and unified.
“You will surely permit that I greet you with a general welcome and with the sincere wish that our common work may be blessed with the hoped for joint success.
“I would, however, like to extend a special greeting to the Reich Chief of Health Services, Under Secretary Conti, who holds the central leadership of medical services in the civilian sector. I see in his presence not only an interest in our work themes, but the expression of his connection with the Wehrmacht Medical Service and his understanding of the special importance of the Wehrmacht in the field as well as at home. I need not emphasize that we are as one in the recognition of the necessity to assure and ease the mind of the soldier, that he need not worry about the physical well-being of the homeland as far as this is within the realm of possibility in wartime.” (NO-922, Pros. Ex. 435.)
Again, at the Fourth Meeting of Consulting Physicians in May 1944 the defendant Karl Brandt stressed the importance of Handloser’s position, saying—
“Generaloberstabsarzt Handloser, you, a soldier and a physician at the same time, are responsible for the use and the performance of our medical officers.
“I believe, and this probably is the sole expectation of all concerned, that this meeting which today starts in Hohenlychen will be held for the benefit of our soldiers. The achievements to date of your physicians, Herr Generaloberstabsarzt, confirm this unequivocally, and their readiness to do their share makes all of us proud and—I may also say—confident.
“It is good simply to call these things by their names and to look at them as they are. This meeting is the visible expression of it—it is, it shall be, and it must be so in every respect; the consulting physicians are gathered around their medical chief. When I look at these ranks, you Generaloberstabsarzt Handloser, are to be envied; medical experts, with the best and most highly trained special knowledge, are at your disposal for care of the soldiers. In reciprocal action between yourself and your medical officers, the problem of our medical knowledge and capacity are kept alive.” (NO-924, Pros. Ex. 437.)
This was no accolade paid to a man without power and influence. If Handloser is not responsible for the crimes committed by the medical services of the Wehrmacht, and especially of the Army and Luftwaffe, then no one is responsible.
In the number three seat we have the defendant Rostock who, as Brandt’s special deputy, was charged with the task of “centrally coordinating and directing the problems and activities of the entire Medical and Health Services” in the field of science and research. Even prior to his appointment to that position in the fall of 1943, Rostock was one of the responsible leaders of the German medical profession. In 1942 he was appointed Dean of the Medical Faculty of the University of Berlin. In the same year he became consulting surgeon to Handloser as the Army Medical Inspector. He attained the rank of Generalarzt. As Chief of the Office for Science and Research under Brandt, it was Rostock’s task to coordinate scientific research in Germany. He received reports as to the issuance of research assignments by the various agencies in Germany and determined which of such assignments should be considered “urgent”. He also served as Brandt’s alternate on the Reich Research Council.
In the number four seat we have the defendant Schroeder, who from 1 January 1944 until the end was the Chief of the Medical Service of the Luftwaffe. From 1935 until February 1940 Schroeder was Chief of Staff to his predecessor, Erich Hippke as Luftwaffe Medical Inspector. From February 1940 until January 1944 he served as Air Fleet Physician of Air Fleet 2, when he replaced Hippke as Chief of the Medical Service of the Luftwaffe. Simultaneously he was promoted to the rank of Generaloberstabsarzt. As Chief of the Medical Service of the Luftwaffe, all medical officers of the German Air Force were subordinated to him. His position and responsibility are clear and unequivocal.
In seat number five is the defendant Genzken, who, as Chief of the Medical Service of the Waffen SS, was one of the highest ranking medical officers in the SS. He joined the Nazi Party in 1926 and in 1936 he went on active duty with the SS in the Medical Office of the SS Special Service [disposal] Troops [SS Verfuegungstruppe], which subsequently became the Waffen SS. In the spring of 1937 the Medical Office of the SS was enlarged and split into two departments. Genzken was made director of the department charged with the supply of medical equipment to and the supervision of medical personnel in the concentration camps. In this capacity he was the medical adviser to the notorious Eicke, predecessor of Pohl as the commander of all concentration camps. Sachsenhausen, Dachau, Buchenwald, Mauthausen, Flossenbuerg, and Neuengamme, among others, were under the medical supervision of Genzken. Few men could have been better advised as to the systematic oppression and persecution of the hapless prisoners of these institutions.
In May 1940, Genzken became Chief of the Medical Office of the Waffen SS in the SS Operational Headquarters, with the rank of Oberfuehrer. The SS Operational Headquarters was subordinated to Gruppenfuehrer Hans Juettner and was one of the twelve main offices of the Supreme Command of the SS. While Juettner was Genzken’s military superior, his technical or medical superior was Reichsarzt SS Grawitz for whom he served as deputy on many occasions. In 1942 his position became known as Chief of the Medical Service of the Waffen SS, Division D of the SS Operational Headquarters. He attained the rank of Gruppenfuehrer in the SS and Generalleutnant of the Waffen SS [major general]. Among the offices subordinated to Genzken was that of the Chemical and Pharmaceutical Service under Blumenreuter and Hygiene under the defendant Mrugowsky. Mrugowsky was attached to Genzken’s office as a hygienist in 1940 and was at the same time Chief of the Hygiene Institute of the Waffen SS which, in turn, was subordinated to Genzken. On 1 September 1943, the Medical Service of the SS was reorganized and, among other things, Blumenreuter, Mrugowsky, and the Hygiene Institute of the Waffen SS were transferred to the Office of the Reichsarzt SS, Grawitz. Thereafter the direct subordination was to Grawitz rather than to Genzken.
And then there is the defendant Blome, Gruppenfuehrer [Major General] in the SA, Deputy Reich Health Leader, Deputy Leader of the Reich Chamber of Physicians and the National Socialist Physicians Association, Representative for the Department of Medical Study, Plenipotentiary in the Reich Research Council, and Chief of Research on Bacteriological Warfare. As the closest associate of Conti, he cannot be omitted from the list of the powerful. Conti was the highest authority in the field of civilian health administration. The decree of 28 July 1942, signed by Hitler, concerning the reorganization of the medical services, defines the position of Conti as follows:
“In the field of civilian health administration the State Secretary in the Ministry of Interior, and the Chief of the Health Administration of the Reich [Reichsgesundheitsfuehrer], Dr. Conti, is responsible for coordinated measures. For this purpose he has at his disposal the competent departments of the highest Reich authorities and their subordinate offices.” (NO-080, Pros. Ex. 5.)
There was not a single medical question which did not reach the Reich Health Department of the Nazi Party and the Reich Chamber of Physicians, subordinated to which were all physicians in Germany, with the exception of those on active Service with the armed forces and in the SS. As a member of the Reich Research Council, Blome was personally connected with plans and enterprises involving criminal medical experimentation.
These were the responsible leaders of the medical services of Germany. Who, then, is missing from this illustrious gathering? During the course of the trial, we have frequently heard mentioned the names of Conti and Grawitz. Indeed, the defendants would have us believe that in these two men, together with Hitler and Himmler, resided the exclusive responsibility for the manifold crimes with which we are here concerned. I hardly need call attention to the fact that all are dead. All of them took their own lives rather than face the bar of justice. No one can deny that those men were, indeed, guilty. But this in no way serves to exonerate these defendants, who all played important roles in the mad scheme. It is a curious thing that not one of the defendants has pointed an accusing finger at a living man. If they are to be believed, all the guilty parties to these crimes are dead. According to them, justice must seek retribution only from the cadavers. The Luftwaffe defendants have been strangely silent as to Hippke, who, but for a belated capture, would have a prominent seat in the dock. Those defendants who worked with the dead criminals—such as Gebhardt, Mrugowsky, and Poppendick with Grawitz, and Blome with Conti—ask the Tribunal to say that their association was honorable and pure, that their work was in another field, that their masters’ crimes come as a great surprise and were never known to them. The evidence proves, however, that they not only knew of and supported these crimes, but also took a personal part in them.
In connection with the responsible positions of these defendants and most particularly of Karl Brandt and his assistant Rostock, Handloser, Schroeder, Genzken, and Blome, I wish to call the Tribunal’s attention to the decision of the Supreme Court of the United States in the case of In re Yamashita.[[140]] On 25 September 1945, Yamashita, the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands was charged with violation of the laws of war.[[141]] He thereafter pleaded not guilty, was tried, found guilty as charged, and sentenced to death by hanging. A petition for a writ of habeas corpus was filed with the Supreme Court purporting to show that Yamashita’s detention was unlawful for the reason, among others, that the charge preferred against him failed to charge him with a violation of the laws of war.
The charge stated that Yamashita, between 9 October 1944 and 2 September 1945, in the Philippine Islands, “while commander of armed forces of Japan at war with the United States of America and its Allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its Allies and dependencies, particularly the Philippines; and he * * * thereby violated the laws of war.” The military commission[[142]] which tried Yamashita found that atrocities and other high crimes had been committed by members of the Japanese Armed Forces under his command, that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers, and that during the period in question Yamashita failed to provide effective control of his troops as was required by the circumstances. The Supreme Court stated the question for their decision in the following language:
“It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognized in international law as violations of the law of war * * *. But it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by the petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit’ the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.”
The Court held that the charge was sufficient and that the law of war “plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.”
This decision is squarely in point as to the criminal responsibility of those defendants in this dock who had the power and authority to control the agents through whom these crimes were committed. It is not incumbent upon the prosecution to show that this or that defendant was familiar with all of the details of all of these experiments. Indeed, in the Yamashita case, there was no charge or proof that he had knowledge of the crimes. In the case before the International Military Tribunal, proof was submitted that the Reichsbank, of which the defendant Funk was president, had received from the SS the personal belongings of victims who had been exterminated in concentration camps. In that connection the Tribunal said in its judgment:
“Funk has protested that he did not know that the Reichsbank was receiving articles of this kind. The Tribunal is of the opinion that he either knew what was being received or was deliberately closing his eyes to what was being done.”[[143]]
But we need not discuss the requirement of knowledge on the facts of this case. It has been repeatedly proved that those responsible leaders of the German medical services in this dock not only knew of the systematic and criminal use of concentration camp inmates for murderous medical experiments, but also actively participated in such crimes. Can it be held that Karl Brandt had no knowledge of these crimes when he personally initiated the jaundice experiments by Dohmen in the Sachsenhausen concentration camp and the phosgene experiments of Bickenbach? Can it be found that he knew nothing of the criminal Euthanasia Program when he was charged by Hitler with its execution? Can it be said that Handloser had no knowledge when he participated in the conference of 29 December 1941 where it was decided to perform the Buchenwald typhus crimes, when reports were given on criminal experiments at meetings called and presided over by him? Was Rostock an island of ignorance when he arranged the program for and presided over the meetings at which Gebhardt and Fischer lectured on their sulfanilamide experiments, when he classified as “urgent” the criminal research of Hirt, Haagen, and Bickenbach? Did Schroeder lack knowledge when he personally requested Himmler to supply him with inmates for the sea-water experiments? Can it be found that Genzken had no knowledge of these crimes when the miserable Dr. Ding was subordinated to and received orders from him in connection with the typhus experiments in Buchenwald, when his office supplied Rascher with equipment for the freezing experiments? Was Blome insufficiently informed in the face of proof that he collaborated with Rascher in the blood coagulation experiments, issued a research assignment to him on freezing experiments and to Hirt on the gas experiments, as well as performed bacteriological warfare and poison experiments himself?
No, it was not lack of information as to the criminal program which explains the culpable failure of these men to destroy this Frankenstein’s monster. Nor was it lack of power. Can anyone doubt that Karl Brandt could have issued instructions to Handloser and Conti that doctors subordinated to them were not to experiment on concentration camp inmates? It is no excuse to say that Hitler and Himmler approved the policy and that his efforts may have failed. Certainly they approved it. But the fact is that Brandt also approved of and personally participated in the program. He was the “highest Reich authority” in the medical services, not Himmler. The medical services were Brandt’s primary function, while Himmler had a few other tasks to keep him busy, such as running the SS, the Ministry of Interior, the German Police, and the Home Army, to mention a few.
Nothing could have been easier for Handloser than to issue a general directive that officers of the Medical Services of the Wehrmacht were to keep out of concentration camps. If he could not have done so, then we must conclude that no one could have. Handloser had no peer in the military medical services. And what Handloser could have done for all the branches of the Wehrmacht, Schroeder, Genzken, and Blome could have done with respect to the Luftwaffe, the Waffen SS, and the Reich Health Department.
The conclusion is inescapable that the crimes of these responsible leaders is a hundredfold greater than that of the wretches who executed the murderous experiments in the concentration camps. Theirs was the power, the opportunity, and the duty to control and their failure is their everlasting guilt.
c. Selections from the Argumentation of the Defense
EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
KARL BRANDT[[144]]
To what extent is the defendant Karl Brandt implicated in the medical experiments?
The prosecution says he is implicated in almost all of them and refers to his position and his connections. They state that he was the highest Reich authority in the medical sphere; there, however, they are misled by an error of the translator, for Karl Brandt only had the powers, regulated in a general way, of an “Oberste Reichsbehoerde” [highest Reich agency], but the execution of these powers was restricted to special cases.
This appears from the three known decrees and from the explanation thereof given by the witnesses. Moreover Karl Brandt was not given these functions until 1944, when these experiments were practically finished, as is shown by the time schedule submitted to the Tribunal for comparison.
It has been proved that the defendant Karl Brandt himself in a broadcast publicly called his position as Reich Commissioner that of a “differential” (coordinator). In fact, Karl Brandt’s task was not to order but to adjust; it was a task designed to fit his character.
We have also learned from the presentation of evidence that the defendant Karl Brandt did not have the machinery at his disposal for issuing orders which was necessary for a supreme Reich authority; he lacked the staff and the means. No one who is acquainted with a government administration will think it possible under these circumstances that the defendant Karl Brandt might have been able to enforce his point of view against the resistance of the old agencies; no one will even think it probable that anything would have been done to facilitate such an attempt of the “new master.”
Consequently, Karl Brandt’s position was not such as to justify the conclusion drawn by the prosecution about his general knowledge. There was no official channel by which everything had to come to his knowledge, for he was not the superior of other authorities.
It is true that the defendant Karl Brandt was supposed to be informed about fundamental matters, that he had the right to intervene, etc. But these were only possibilities, not in conformity with conditions in practice. We have seen that Conti opposed him and that Himmler prohibited direct contact with Karl Brandt within his sphere.
Therefore, Karl Brandt can be brought into connection only with the events in which he participated directly.
Here it is striking first of all that the defendant Karl Brandt, who is supposed to have been the highest authority, appears only very rarely.
Now the prosecution endeavors to establish a connection of Karl Brandt with the other experiments via the Reich Research Council. It is true that one can establish such a connection theoretically on paper, but the links of the chain break when one examines them closely. Only the head of the specialized department [Fachspartenleiter] judged the so-called research assignments, and he only investigated whether the aim was necessary for war, not how the experiment was to be carried out. He could not inform others of matters which he did not get to know himself.
The defendant Karl Brandt is charged further with not having protested in one case when he heard about deaths caused by experiments on persons sentenced to capital punishment in the well-known lecture on sulfanilamide. I must point out that even if this experiment had been inadmissible, silence would not be a crime for assent after the act is without importance in criminal law and one can be connected with plans and enterprises only as long as they have not come to an end.
Now the prosecution has introduced in its closing brief the new charge by which it holds the defendant Karl Brandt responsible for negligence. In this respect I should like to point out that no indictment for negligence has been brought in and that the concept of a crime against humanity committed by negligence cannot exist.
It will, therefore, be sufficient to emphasize that the alleged negligence depends on the existence of an obligation of supervision and the right to give orders through other agencies. In every state the spheres of competency are separated and it is not possible for everyone to interfere in everything because everyone is responsible for everything.
The prosecution says that the defendant Karl Brandt ought to have used his influence and have availed himself of his intimate relationship to Hitler to stop the experiments. Even presuming that he was aware of the facts as crimes, his guilt would not be of a legal but only of a political or moral nature.
Till now nobody has been held criminally responsible for the conduct of a superior or a friend; however, the Tribunal only has to consider the question of criminal law.
But in fact these close relations did not exist; the defendant Karl Brandt was the surgeon who had to be in attendance on Hitler; Dr. Morell, the latter’s personal physician, soon tried to undermine the confidence placed in Karl Brandt so that he was charged with commissions which removed him farther and farther from the sphere of his medical activity.
The alleged intimate relations were eventually crowned by the dictation of a death sentence against Karl Brandt without his having been granted even a consultation on the charges advanced against him.
EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
SCHROEDER[[145]]
Your Honors, a clear distinction must be made between the periods when Professor Schroeder was not yet Chief of the Medical Service of the Luftwaffe and the time when he held that office. We are concerned here with the period from the beginning of 1940 to the end of 1943. During that period Professor Dr. Schroeder was the leading medical officer of Airfleet 2, and as such continually on service outside Germany. It was only from 1 January 1944 onwards that he held the position of Chief of Medical Service of the Luftwaffe.
This shows clearly that Professor Dr. Schroeder cannot be held responsible for all experiments in concentration camps which were carried out prior to 1 January 1944. His sphere of duties was confined to the medical care of the airfleet units under him and he was without any official points of contact with the Medical Inspectorate unless the latter was competent for his position as an airfleet doctor.
To give a picture of Professor Schroeder’s duties at that time, I draw attention to the fact that the personnel strength of Airfleet 2 amounted to 200,000 to 300,000 men.
When dealing with Professor Schroeder’s responsibility for the high-altitude experiments in Dachau, the prosecution had overlooked the fact that at the time in question, Professor Schroeder was airfleet doctor and maintained that during that time he was, after Professor Dr. Hippke, the Medical Chief, the second highest medical officer of the Luftwaffe. From that circumstance, the prosecution draws the inference that Professor Schroeder, as the second highest medical officer, was the obvious deputy for Hippke and, therefore, had to know about the most important events concerning the Medical Inspectorate.
The defendant Professor Schroeder has in his defense proved beyond doubt that he was not the most senior medical officer after Hippke and, therefore, not Hippke’s deputy. As Generalarzt and Generalstabsarzt he simply had the rank next to that of the Medical Chief, as did the other five airfleet doctors. Above him in rank were two Generalstabsaerzte, namely Generalstabsarzt Dr. Neumueller and Dr. Blaul. The former had his office in Berlin and was in fact Hippke’s deputy if and when necessary.
Professor Dr. Schroeder has also refuted the further assumption of the prosecution that his relations with Professor Dr. Hippke had been particularly close, for which reason Hippke had informed him about the high-altitude experiments. In particular the witness Dr. Augustinick, Schroeder’s personal adjutant during his service as an airfleet doctor, confirmed that relations between Hippke and Schroeder were extremely tense and unpleasant and that they confined themselves to discussing only the necessary things on the occasion of their highly infrequent official meetings.
Your Honors, if one surveys the conduct of Professor Schroeder during the entire period from 1940 until the end of the war, one will not be able to find one single piece of evidence to show that Professor Schroeder at any time or in any manner violated the duties which the calling of a physician or medical ethics prescribed for him. In no instance did he act in a manner which could not stand examination by a court. One may well claim that he never disregarded the maxim of Hippocrates “primum nil nocere,” but preserved it as a guiding principle of his actions as a doctor and officer of the medical services of the German Luftwaffe.
The prosecution has failed to prove that Schroeder ever ordered such an experiment during the period of time covered by the charges of the prosecution, or that he participated or had knowledge of any such experiment. It has not even been proved that it was possible or necessary for him to gain knowledge of such experiments. Professor Schroeder has clearly explained why he could not gain such knowledge. For the whole period of time from 1942 to the end of 1943 the responsibility must rest on Professor Hippke, but not on Professor Schroeder.
EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
ROSTOCK[[146]]
In the opening statement General Taylor said that the Reich Commissioner for the Medical and Health System was to be regarded as the supreme Reich authority. (Tr. p. 19.) The emphasis on this word is confusing and contradicts the authentic Document NO-082, Prosecution Exhibit 7 which states, “In this capacity his agency is a supreme Reich authority.” In this decree, then, the word “the” is missing. But this is most essential. For the decree signifies that it is one of many “supreme Reich authorities,” whereas the type of expression chosen by General Taylor must lead one to conclude that it was the only “supreme Reich authority” in the Department of Health. But, as the evidence has shown, this was not true. In his opening statement on 9 December 1946 (Tr. p. 19) General Taylor said: “Rostock’s position comprised the activities of the medical societies, the medical universities, and the Reich Research Council.”
During this trial none of the numerous German medical societies, with the exception of Ahnenerbe, have been attacked. I want to point out here that, first of all, the Ahnenerbe cannot be considered as a medical society, as is proved beyond doubt by the plan of organization submitted to this Tribunal. (Sievers 2, Sievers Ex. 4; Sievers 3, Sievers Ex. 6.) And let me point out that Rostock testified (Tr. p. 3296) that during the war he did not know this society or even its name, and that on 11 April 1947 the witness Sievers stated (Tr. p. 5788) that Ahnenerbe’s medical institutes for scientific research of military value were not subordinate to the Commissioner General for the Medical and Health System, that means, were not subordinate to the office directed by Rostock.
Neither were the medical universities subject to his supervision. They were subordinate to the Reich Ministry of Education.
I shall deal with the Reich Research Council later on. First, I would like to deal with the Office for Science and Research. As far as the incorporation into the German state machinery of the Office of the Commissioner General or the Reich Commissioner for the Medical and Health Services is concerned, I refer to Dr. Servatius’ statements.
Without a doubt, the prosecution has gained the wrong impression of the extent, actual activity, and influence on other agencies of the Office for Science and Research.
Rostock has dealt with this question in detail during direct examination. The Tribunal will certainly still have a recollection of his statement. Rostock actually had no supervisory authority over research work of the branches of the Wehrmacht and the SS.
Brandt’s, and thus also Rostock’s, commission did not comprise all medical affairs but only special tasks as was testified quite clearly here by the witness Lammers on 7 February 1947. (Tr. p. 2667.) And the assignment given Rostock did not include supervision of practical research. (Tr. p. 2449.) On 23 April 1947 Professor Rose quite correctly described the situation in Germany (Tr. p. 6300) when he said that the central planning of medical research in Germany is a phantom born 1½ years after the end of the war. True, attempts were made to correct the impossible situation created by the lack of a central direction of science in Germany. Attempts were made but the leading German politicians recognized the importance of science too late.
Germany did not have an institution with the competency and the financial means of the American “Office of Scientific Research and Development” under Dr. Vannevar Bush which, under the direction of the same man, was taken over into the United States’ peace organization under the name of “Joint Research and Development Board.” The relationship of Rostock’s agency to the SS must be discussed briefly, for all experiments which play a part in these proceedings were, after all, carried out in concentration camps which came under the jurisdiction of the SS. Rostock himself was never a member of the SS. Apart from that, he had no other relations of any kind with the SS. When the agency of the Commissioner General for the Medical and Health System was created, Hitler, in the presence of Himmler, made it quite clear to Karl Brandt that in his (Karl Brandt’s) capacity of Commissioner General the SS was not his affair. (Tr. p. 2324.) The practical execution of this directive has been expressly confirmed by Genzken. (Tr. p. 3780.) Furthermore, the decree of 25 August 1944 (NO-082, Pros. Ex. 7), which lists the agencies to which the Reich Commissioner for the Medical and Health System could give directives, does not mention the SS. Genzken also testified that no direct connections existed between Genzken’s and Brandt’s offices. According to the numerous affidavits submitted by Genzken (Genzken 1, Genzken Ex. 3; Genzken 9, Genzken Ex. 9; Genzken 6, Genzken Ex. 10; Genzken 8, Genzken Ex. 11; Genzken 3, Genzken Ex. 12; Genzken 5, Genzken Ex. 13; Genzken 16, Genzken Ex. 14; Genzken 17, Genzken Ex. 15; Genzken 15, Genzken Ex. 16) only Grawitz was competent for scientific research within the SS. Genzken also testified that Rostock never gave instructions in research affairs to the SS. (Tr. p. 3780.)
Gebhardt testified on 4 March that Grawitz was never subordinate to Karl Brandt and that Brandt never even had the right to give directives to Grawitz. (Tr. p. 3977.) He testified further that Himmler wanted to create a “science exclusively for the SS” and that the university people had resisted that attempt. However, Rostock must quite definitely be considered an exponent of university scientists. The proof for the correctness of Himmler’s intention of a “science exclusively for the SS” is contained in a letter, dated 22 September 1942, from SS Gruppenfuehrer Berger to the Reich Leader SS. (Karl Brandt 120, Karl Brandt Ex. 35.)
When in the instruction of 15 May 1944 (NO-919, Pros. Ex. 460) Himmler fixed the formalities for the carrying out of experiments on prisoners, it was natural that the names of Rostock or Karl Brandt were not mentioned in it. This instruction was not sent to Karl Brandt even for information purposes as is revealed by the document itself. This should be sufficient proof that Rostock had no influence on research activities within the SS or the concentration camps. During discussion of the individual experiments it has already been pointed out that he did not even know of them.
In regard to research commissions given to the medical chiefs of the Luftwaffe, Schroeder had claimed (NO-449, Pros. Ex. 130)—and during cross-examination he was again reproached for this document (Tr. p. 3695)—that all research assignments had to go through Rostock’s office. In his affidavit Schroeder testified that this was an erroneous description. (Rostock 11, Rostock Ex. 10.) In another interrogation on 27 February 1947 by Dr. Krauss (Tr. p. 3695) Schroeder expressly confirmed the correctness of this affidavit. For it had only been agreed that a carbon copy of the research commission given out would be sent to Rostock. His approval of the assignment of commissions was not required. The witness Wuerfler, too, confirmed this during his cross-examination by Dr. Krauss on 19 February 1947. (Tr. p. 3142.) And in his affidavit, Becker-Freyseng testified that the Luftwaffe did not commission Rostock’s office to carry out research by way of experiments on human beings. (Rostock 10, Rostock Ex. 9.)
During the hearing of evidence on 2 June 1947 in the case of Becker-Freyseng, it was discussed in detail how research commissions happened to come about, how reports were made on them and that the means by which results were obtained were not prescribed; and that a real control by the agency giving out the commissions was neither exercised nor possible. I refer to the transcript which contains significant testimony in this connection. (Tr. pp. 8317, 8320, 8321, 8324-8326.)
And now I would like to turn to the problems connected with the Reich Research Council. Here the prosecution has charged Rostock with responsibility because from the beginning of 1944 on he was Brandt’s deputy in his capacity as a member of the presiding council of this body. The fact itself is not, but the responsibility, especially in the sense of penal law or morals, must be denied. I deny the prosecution’s assertion, leading up to Mr. McHaney’s statement of 10 December 1946 (Tr. pp. 96 and 144), that Rostock exercised a “supervisory control” over the Reich Research Council or—on the occasion of submitting a letter from Rascher about freezing experiments (NO-432, Pros. Ex. 119)—that the “Reich Research Council as a whole is implicated in a criminal manner.”
The question of the Reich Research Council has been cleared up sufficiently during the examinations of Karl Brandt, Rostock, Blome, Sievers, as well as by the affidavits of the Chief of the Managing Committee of the Reich Research Council, Mentzel. (Rostock 13, Rostock Ex. 12; Sievers 42, Sievers Ex. 43.) As the crux emerges in this connection the fact that those responsible for the assignment of research commissions were, exclusively, the managers of the special sections and their authorized agents and plenipotentiaries who in turn were directly responsible to Hermann Goering.[[147]] Rostock was not among them. The members of the presiding board had no supervisory duty over and no right to issue directives to the managers of the special sections.
The members of the presiding board were informed about research carried out through the printed reports, the so-called “Red Booklets.” It can be assumed “that the prosecution is in possession of these booklets. The entire files of the Reich Research Council were handed over to the American authorities by Professor Osenberg and some documents from these files have been submitted during this trial.”
If the “Red Booklets” contained a single paragraph which could be used to prove the prosecution’s claims, it can be assumed with certainty that these booklets would have been submitted here. But this was not done. From this the conclusion can be drawn with certainty that the members of the Presiding Council of the Reich Research Council did not receive any information about criminal experiments. And, as quoted before in this connection, Mr. McHaney himself admitted during the cross-examination of Rostock that he did not believe that, for example, Haagen informed the Reich Research Council about his experiments in the concentration camps.
Haagen made detailed statements on the coming into being of research commissions in general and, also in particular, on that of the commissions he gave out, and on the right and the duty of control held by the agency giving the commission. (Tr. pp. 9417-9419.)
EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
HANDLOSER
It is the duty of the Inspector of the Army Medical Service, as Chief of the Army Medical Service, to insure within the scope of his official supervision that the intermediate superiors are able to perform their duties. He also has to see to it that the military information and report channels are well organized in order to guarantee the required survey of the whole complex and the reporting and immediate investigation of unusual individual cases. This requires the greatest possible care in the selection of the subordinate leading medical officers, as well as periodic inspections to be carried out by the officers selected.
Professor Handloser has submitted an affidavit to this Tribunal concerning the reporting systems pertaining to military medical matters of the Wermacht branches. (Handloser 65, Handloser Ex. 62.)
This document reveals the exemplary organization of the Message and Report Organization, including the sphere of the consulting expert physicians. The handling of the reports on “special occurrences” seems to me to be of special importance for the problem under discussion here. It was a standing order for the whole Wehrmacht that every office, including the offices of the medical service, had to report to the superior office immediately and by the quickest method each occurrence of each circumstance outside the bounds of normal events. (Handloser 65, Handloser Ex. 62.)
Professor Handloser as Inspector of the [Army] Medical Service and Surgeon General [Army Medical Chief (Heeresarzt)] was the Chief of the Medical Service for all fronts and the zone of the interior and was responsible to the Commander in Chief of the Army and to the Commander of the Replacement Army. The 26,500 medical officers of the army were subordinated to him. His field of office and the extent of his work were, therefore, extremely wide.
To handle such a large field of work properly—in Handloser’s case it also included the office of the Chief of Army Medical Service—a division of labor had to be made into time, space, and facts. The organization and the progress of work in the sphere of the Army Medical Inspector and the Chief of the Army Medical Service was explained by Professor Handloser in his affidavit. (Handloser 29, Handloser Ex. 4.) According to this the basic and most important questions were dealt with and decided upon in any case by Professor Handloser as the chief of the highest office. In this connection I refer to the testimony of Dr. Wuerfler (Tr. p. 3135) and affidavit of Schmidt-Bruecken. (Handloser 62, Handloser Ex. 58.) Special attention has to be paid here to incoming mail (messages, reports, letters). In the Handloser affidavit (Handloser 29, Handloser Ex. 4), the following is stated:
“All letters and packages, unless they were marked ‘secret’ or ‘top secret’ (Mil.) went to the registry. Here they were opened, the date stamp was affixed by the registrar who simultaneously marked the letter for delivery to the Chief of Staff, or to the various section chiefs direct. The Chief of Staff in turn marked those communications which were to be submitted to the medical chief with a cross in colored pencil.
“Secret and top secret (Mil.) material was handled in a special manner. This material was entered in a journal, and then directed to the attention of the Chief of Staff who in turn determined which documents were to be submitted to, or brought to the attention of, the medical inspector immediately or after they had been dealt with.”
This arrangement could be made without prejudicing a regular settlement since the authorities in question were under the command of specially qualified people (department chiefs) headed by the Chief of Staff who supervised the daily business routine and was responsible for all business matters.
With regard to Handloser it must be borne in mind that during the war he was very rarely present in the head office (Berlin). Owing to Handloser’s double function as an army doctor and Army Medical Chief, and furthermore as a result of the division of the Army Medical Inspectorate into two parts for the front and the zone of the interior, Handloser necessarily had to spend most of his time at army headquarters and at the front. He could only be present in Berlin for about one-tenth of the time. (Tr. p. 3135.) Furthermore, it became necessary to staff the offices at home with specially qualified medical officers since they had to act mainly on their own initiative in performing their tasks.
The Chief of Staff of the Army Medical Inspectorate, for instance, was a Generalarzt; the chiefs of the individual departments were Oberstaerzte. In order to do justice to the burden and the responsibility which Handloser had been shouldering, one must visualize the tasks and scope of work connected with the Medical Inspectorate. Owing to the war these tasks had been intensified to the utmost limits, there was the expansion of the theaters of operation and the personal problems of 26,500 medical officers. One will also realize that Handloser could only attend to the most important and the most basic problems.
The Chief of Staff and the departmental chiefs, as was their duty, determined which matters were of sufficient basic and vital importance to be referred for decision to the Army Medical Chief.
It must be considered most unlikely for the highest authority (i. e., the chief) of a large sphere of activity to have knowledge of all happenings within this sphere.
Furthermore, actual facts do not confirm that the person exercising the highest powers of command within the military hierarchy of the army is in some degree the originator of all orders executed by a subordinate in his hierarchy. If an order has been issued, one must determine who of all the supervising chiefs of the offices in this hierarchy is the originator responsible, under criminal law, for this order. If no special order was issued one must examine whether the incriminating behavior on the part of the defendant personally was prompted by circumstances within the scope of responsibility, under criminal law (such as orders and regulations which rendered possible the criminal behavior of a subordinate or appropriate consent to commit the criminal offense, before its initiation or its completion).
Only if the prosecution maintains and proves (a) that the behavior of a subordinate constitutes a punishable offense, and (b) that this action in particular was the result of an order issued by the superior, or of his consent given prior to the offense, can the defendant be charged as an abettor, offender, accomplice, or participator.
This exhausts all possible modes of behavior prior to the criminal offense. Whatever happened afterwards cannot have any relevant bearing on this legal evidence. This is impossible since all causality is lacking.
With regard to the question of a possible offense against the duties of a supervisor, the following must be said: According to Art. 147 of the German Military Penal Code “Whoever neglects to carry out the task incumbent upon him of supervising his subordinates either intentionally or through negligence” is liable to punishment. According to German theory and judicial practice, the application of this law presupposes the existence of a direct relationship between superior and subordinate.
If anything inadmissible or punishable happens in the sphere of duty this might be attributed to the fact that the supervising official neglected his duty, but it is also possible that it occurred through no fault of the supervising official. In the first instance the supervising official is liable to punishment according to Art. 147 of the Military Penal Code; this, however, does not apply in the latter case. The question only arises of whether in the former case the supervising official has to answer before criminal law for the action of his subordinate. This must be answered in the negative. An offense against the duties of service supervision constitutes in itself an offense. It does not automatically demand that the supervising official should be punished for the criminal offense committed by the subordinate, for according to the criminal laws of all civilized countries, a person can only be made responsible before criminal law for an offense committed by himself, i. e., if the supervising official can be considered an accomplice or participant in the crime of a subordinate. Only thus can the passage of count one, 3 of the indictment be understood. This provides for a responsibility before criminal law for others, “for whose actions the defendants are responsible.”
The prerequisites for this case have been set forth above.
The position of Professor Handloser as Chief of the Armed Forces Medical Service
The prosecution asserts that Handloser as Chief of the German Armed Forces Medical Service had the supreme supervision and command of the medical services of the three branches of the armed forces as well as of the Waffen SS. This is a fundamental error which is based on the incomprehensible statement of the chief prosecutor in his opening statement:
“Under the OKW came the High Commands of the three branches of the Wehrmacht—the Navy (OKM), the Army (OKH), and the Air Force (OKL).”
From the verdict of the IMT, I quote the following in regard to the Chief of the Supreme Command of the Armed Forces (OKW) who was the superior of the defendant Handloser:
“Keitel [as Chief of the Supreme Command of the Armed Forces] did not have command authority over the three Wehrmacht branches * * *.”[[148]]
From this the prosecution should have drawn the logical conclusion that, if the superior of Handloser, Keitel, had no powers of command over the three branches of the armed forces and their supreme commanders, then Professor Handloser, as his subordinate, also could have had no powers of command over the medical chiefs attached to the staff of the supreme commanders. The evidence has corroborated this. (Tr. pp. 2860-3, 3129-30, 3219, 3557.)
The prosecution refers for proof of the contrary only to the statement of the former Air Force Chief Hippke in another trial. According to that Hippke is supposed to have testified that Professor Handloser had been his professional superior. The incorrectness of this statement is proved by the opposing testimonies given under oath by Professor Dr. Schroeder who succeeded Hippke and of Generalarzt Dr. Hartleben (Tr. pp. 3219-20, 3225), as well as of Generalarzt Dr. Wuerfler (Tr. pp. 3129-30). The evidence submitted, combined with the contents of the decree of 1942, has shown that it was the duty of the Chief of the Armed Forces Medical Service to direct the adjustment of personnel and material affairs within the branch of the armed forces as is evidenced by the first sentence of the decree. Within the scope of this sphere of duties, Professor Handloser was charged with the combination or—as it was generally called—the coordination of all common problems in the field of the Armed Forces Medical Service. The task of coordination given Professor Handloser did not mean that thereby all common problems automatically came under his jurisdiction. It was rather his duty to examine which part of the immense medical service was suitable for coordination. Generalarzt Dr. Wuerfler has aptly called this a “program of future fields of endeavor”. In this connection see also Professor Schroeder (Tr. pp. 3557, 3558). Whenever Handloser thought that a certain department was suitable for coordination, he tried to reach an agreement with the medical chiefs of the branches of the armed forces; for since he had no powers of command, the coordination could only take place in conjunction with the medical chiefs. After coordination had been accomplished, he was empowered to issue “directives” in this field which did not have the character of an order. Hartleben replies to the question of my colleague Dr. Steinbauer:
“Directives give general guiding principles, an order must be carried out to the letter.”
Wuerfler expresses the same in the following manner:
“A superior has the authority to give orders. One can only speak of a right to issue directives where there exists no authority to give orders and no relationship of superiority.”
Research is a field which by its nature is unsuitable for coordination. For, while it is possible to alleviate personnel and material deficiencies in the personnel and material fields of the medical service by coordination, or in other words to achieve a practical useful effect, such is not the case with respect to research. The prosecution also questioned Professor Rostock regarding the problem of coordination in the field of research and argued that through such a coordination, that is to say, such a concentration of research activities which were carried on in various places, personnel and material could be allocated more effectively. Professor Rostock has made some remarks on this account which are of fundamental importance because they disprove the thesis of the prosecution with objectively convincing reasons. According to him, many conditions in the military and medical fields are suitable for coordination, while research cannot be coordinated. It is better for the aim in view when several scientists work on the same research subject, than if only one office were engaged in this activity. Professor Rostock says quite rightly:
“If someone were to say to me, give this matter all your attention, and the same thing is being worked on at this place and that, then, in all probability, I should have looked for reasons why it was necessary for both places to be doing the same thing.”
And again:
“I would regard it as an absolute mistake to say to one scientist: You are not allowed to work on that any longer, the other one is working on that * * *.” (Tr. p. 3352.)
Witness Hartleben, too, took the same point of view during cross-examination. (Tr. p. 3217.) To the question of the prosecutor:
“Would it not have been the task of the Chief of the Armed Forces Medical Service to coordinate the separate research activities in the same field in order to make the most advantageous use of available personnel and material”?
he replied:
“In my opinion the Chief of the Armed Forces Medical Services must in such a case make an investigation; because it is after all the case in science and research that very often it becomes necessary to pursue many different ways in order to arrive at some aspired goal, and the case may occur—and I can imagine it very well—where it is desirable to have several scientists engaged on the same problem * * *.”
Therewith Rostock confirms the defense argument of Handloser on this count. Summing up: The end aspired to by coordination—saving of personnel and material—is incompatible with the very nature of successful research. The order for the coordinating of personnel and material can, therefore, never be applied to the field of research.
Quite another thing is the creation of working groups within the same field of research. The purpose of the creation of such a working group was not to be a saving of personnel and material but mutual information and discussion in order to check how far the individual researchers had advanced by different routes.
Such a measure proposes to counteract the exaggerated secrecy and egotistical withholding of information often noticed in the field of research. Inventors and scholars regard their discoveries as revolutionary. As prototypes of individualism they are intent on keeping the details of their research secret even, or precisely, from other scholars who work in the same field. This fact is aptly characterized in the document submitted by the prosecution. (NO-262, Pros. Ex. 108.) I quote from this letter of the former Chief of the Air Force Medical Service, Dr. Hippke:
“The difficulties exist in quite another field. They are questions involving the vanity of the individual scientists, each and every one of whom wants to obtain all the results of the research individually, and who often can only be brought to altruistic cooperative work with the greatest difficulties.”
The Court will see from this that the creation of working groups in the field of hepatitis research in accordance with the suggestion of Dr. Schreiber at the Breslau Hepatitis Conference in June 1944 had nothing to do with coordination, but that it left the number and the activity of the different scholars engaged in hepatitis research untouched. The Chief of the Armed Forces Medical Service also had in his very limited office staff no department for research. (Tr. pp. 3218, 3224.) Only in the service regulations which became effective on 1 September 1944 (NO-227, Pros. Ex. 11), which however practically never went into effect. (Tr. p. 3140; Handloser 29, Handloser Ex. 4.) Under 14a one of the tasks of the Chief of the Armed Forces Medical Services was mentioned as being the taking of uniform measures in the field of medical science, including the field of research and the fight against disease. However, here, too, it was not a matter of the subordination of the research institutions of the branches of the armed forces but of examining a “problem” whether cooperative work in certain fields of research was feasible. Actually, due to developments since September 1944, coordination in the field of research never took place. The research activities of the different branches of the armed forces as well as of the Waffen SS were and remained independent. What is important in this trial in regard to Handloser’s responsibility is the question whether he as Chief of the Armed Forces Medical Services had any functions in the field of research and if so what they were. He himself has stated and Generalarzt Dr. Hartleben, who had an authoritative part in the drafting of the decree of 1942 (NO-080, Pros. Ex. 5) and of its supplementary service regulations, has declared that the research activities of the branches of the armed forces and of the Waffen SS did not belong to the official department of the Chief of the Armed Forces Medical Services. For the department of research of the Air Force Medical Inspection Service the aforementioned Air Force Medical Inspector Hippke has furnished convincing proof. The prosecution submitted a letter from Hippke of 6 March 1943 to SS Obergruppenfuehrer Wolff (NO-262, Pros. Ex. 108) from which I quote—
“Your opinion that I as responsible head of all research activities in medical science had objected to freezing experiments on human beings and had thereby obstructed the development is erroneous.”
Furthermore I call attention to Document NO-289, Prosecution Exhibit 72 and Document 1612-PS, Prosecution Exhibit 79, which confirm the independence of the air force research work, also to the affidavits of Professor Schroeder and Dr. Becker-Freyseng. (Handloser 22, Handloser Ex. 33; Handloser 23, Handloser Ex. 34.)
It is undisputed that one connection existed between the two medical services, viz, the one with that part of the Medical Service of the Waffen SS which was connected with the Waffen SS divisions during mobilization at the front. It was under those medical offices of the army which corresponded to the respective superior military offices. The divisions of the Waffen SS came under the corps commander of the army; correspondingly, the Medical Service of the Waffen SS divisions came under the corps doctor; the medical service led via the army medical officer [Armeearzt], the army group medical officer, and the army medical chief [Heeresarzt] to the army medical inspector and above him, to the Chief of the Armed Forces Medical Service.
None of these offices, neither military nor medical, could interfere with the essential “character,” the appointment of personnel equipment make up, organization, etc., of the division. The order pertained only to mobilization at the front (tactical subordination). Beyond that, all authority remained in the hands of the superior office of the Waffen SS, the Operational Main Office [Fuehrungshauptamt], Reich Leader SS (Himmler-Grawitz).
The mobilization of the medical units, of the field hospital ambulances and hospital trains, i. e., of the various units of the division medical officer SS, were handled by him in accordance with instructions from the division. Higher orders in regard to the care of SS wounded and sick were given to the SS division medical officer via the army corps medical officer by the army medical chief. In the ordinary course of medical matters, even the army medical officer was not included with the exception of casualty report service. The Army Medical Inspector and the Chief of the Armed Forces Medical Service had practically no occasion to interfere. That only happened when some special event was reported to the higher offices.
The Chief of the Armed Forces Medical Service had the power only for the length of time of subordination to the armed forces to delegate authority, by request of the army medical chief through the Army Medical Inspector, to the army or corps medical officer to make personnel or material adjustments within his department.
With the exception of the fighting divisions, the Chief of the Armed Forces Medical Services had no authority over any other unit or establishment of the Waffen SS, any more than over Dr. Genzken as Chief of the Waffen SS Medical Service beyond the limit of the front divisions. In summing up, then, it is to be noted that the relationship between the armed forces medical offices and those of the Waffen SS was limited in time and practice to the medically necessary tactical subordination and to the medical service during combat operations. This goes to prove that Professor Handloser did not have any influence on the medical organization of the Waffen SS, that is to say, on the entire range of affairs and provinces of the medical service and the health service. This applies especially to medical research and the institutions created for that purpose. This has been proved (a) by the affidavit of Professor Handloser on the diagram of the Medical Service of the Armed Forces; (b) by the affidavit of Professor Mrugowsky (Handloser 17, Handloser Ex. 5); (c) by the affidavit of Dr. Genzken (Handloser 16, Handloser Ex. 6); (d) by the official footnote in the service instructions of 1944 (NO-227, Pros. Ex. 11); (e) by the affidavit of Professor Gebhardt (Tr. p. 4191); (f) by the expert testimony of Hartleben, and (g) by the testimony of Wuerfler (Tr. pp. 3132, 3140, 3142).
The contention of the prosecution that Professor Handloser as Chief of the Armed Forces Medical Service had the supervision of the medical service of the Waffen SS is thereby refuted.
This also invalidates the basic thesis of the prosecution on which is founded the indictment of Professor Handloser, since it has been proved that the Chief of the Armed Forces Medical Services had, in the field of medical research, neither commanding authority nor supervisory powers outside of the scope of military medical inspection.
What has been stated here for the time of the decree of 1942—1 August 1942 until 31 August 1944—applies equally to the time beginning 1 September 1944. The decree of 7 August 1944 (NO-227, Pros. Ex. 11) represented an extension of the original development toward coordination, without accomplishing the subordination of the medical chiefs of the branches of the armed forces as requested by the Chief of the Armed Forces Medical Services. What actually was accomplished was a change in the advisory authority he had held up to then, into commanding authority in the sphere of the technical duties to the Chief of the Armed Forces Medical Services.
Professor Handloser has testified under oath (Handloser 29, Handloser Ex. 4) and witness Hartleben confirmed the same in his statements that, as has already been pointed out above, nothing was changed as far as the field of research of the branches of the armed forces and of the Waffen SS was concerned. The aim of centralizing the widely separated institutions was wrecked, except in those cases which were solely conditioned by the war after 1 September 1944, particularly also owing to the fact which was brought out in the testimony that in the meantime other offices had taken over the management of the research work in the various fields (1) Reich Research Council, (2) Office for Science and Research, and (3) Society for Military Research.
In conclusion and by way of precaution, I also wish to mention the following for the consideration of the Tribunal in connection with the problem of the commanding authority of Handloser as Chief of the Armed Forces Medical Services:
Supposing for a moment that Professor Handloser had had the power of command, there is nothing that speaks more convincingly for his exoneration than the fact that the prosecution has not produced one single document (no order, no regulation, no letter) from which could be deduced that he had made use of his commanding authority in the sense of ordering the performance of an illegal experiment.
In view of the length of time for which he had held the position as Chief of the Armed Forces Medical Services from August 1942 until May 1944, this fact is of decisive importance.
EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT
GENZKEN
Position and activities
The witness Juettner states the following about his position and his activities (Genzken 15, Genzken Ex. 16): “Dr. Genzken’s position as Chief of the Medical Office of the Waffen SS was the position of a superior officer of the medical units of the Waffen SS. He was exclusively responsible for their training, the formation of new units and their equipment. He had to find substitutes for casualties in the fighting units.”
The Waffen SS itself was newly created in the summer of 1940. At that time it was composed of approximately 580,000 men. (Tr. p. 3792 ff.) In addition to that there were about 320,000 casualties, so that there was a total strength of approximately 900,000 men. The official medical care of the whole Waffen SS was in the hands of the defendant Dr. Genzken. At the beginning, the medical personnel of the Waffen SS was about 800 men and at the end approximately 30,000 men. At the beginning, two hospitals were available to the Waffen SS and at the end of the war, sixty. Six hygiene institutes grew out of a single one in Berlin, etc.
Apart from that, the whole extensive medical organization during the war had to be built up by Dr. Genzken from nothing and under the particularly difficult circumstances caused by war which are sufficiently well known to the high Tribunal. The medical inspectorates of the three Wehrmacht branches could refer back to long years of experience, in the case of army and navy even tens of years. This was not the case in the young arm of the Waffen SS.
For this reason alone it is obvious that the scientific research and planning was not included in Dr. Genzken’s sphere of work, as he repeatedly emphasized during his presentation of evidence and as he underlined by the presentation of affidavits. (Genzken 3, Genzken Ex. 12; Genzken 5, Genzken Ex. 13; Genzken 6, Genzken Ex. 10; Genzken 8, Genzken Ex. 11; Genzken 9, Genzken Ex. 9; Genzken 15, Genzken Ex. 16.)
But Dr. Genzken did not even have the time to concern himself seriously with scientific matters. That was only natural. His most pressing worries were to organize newly the medical services of the Waffen SS as regards personnel and material and to look after it continuously. His position brought with it a considerable responsibility in the whole province of medical services of the Waffen SS by establishing new medical units, equipping of new hospitals so that he had no time left for any other work. It has become absolutely clear during this trial that scientific research and planning was the task of the Reich Physician SS. May I point out in this connection that all the experiments which were discussed in this trial can be traced back almost without exception to Himmler’s and Grawitz’ own initiative. Whether they were high altitude and cooling experiments or typhus and sulfanilamide experiments, all of them were started by one of Himmler’s or Grawitz’ orders. This fact is still more underlined by Document 002-PS, Prosecution Exhibit 39. It is, as it says there literally, concerned with the taking over of research work by the Reich Physician SS, Grawitz. The latter had asked at the end of 1942 that 53 officers be allotted to him for scientific research work. In the whole document, which consists of several reports of the Reich Ministry of Finance and the Reich Physician, the scientific research work in the whole of the medical sphere is mentioned again and again as directed and ordered by the Reich Physician. Even though the application was rejected, later on the lack of typhus vaccine gave, for example, Dr. Grawitz the opportunity to establish, with Himmler’s authorization, an experimental station for typhus research in the Buchenwald concentration camp as his first own scientific institute.
Grawitz has also frequently emphasized to the defendant Mrugowsky that he alone was competent for the research and planning tasks in the medical branch within the SS, and that Dr. Genzken had nothing to do with it. (Genzken 1, Genzken Ex. 3.)
That Dr. Genzken was never interested in the activity and the sphere of work of the Reich Physician, nor even tried to be given these tasks, follows from the fact that in 1941 Himmler chose Dr. Genzken to became Grawitz’ successor. When Genzken’s superior officer, the Chief of the SS Operational Main Office [Fuehrungshauptamt] Juettner, informed him about this request, he at once rejected it energetically, as he preferred to remain in the medical service of the troops and as he thought himself not suitable for scientific research. (Genzken 15, Genzken Ex. 16.)
Dr. Genzken during his interrogation gave the Court a detailed description of the entire staff available to him for the completion of his duties. He expressly pointed out that in the entire organization of his medical office, no office for scientific research and planning was scheduled, and that therefore, in fact no such office actually existed. (Tr. p. 3796.) This fact is also emphasized by the fact that in the Medical Office of the Waffen SS no group of “consulting physicians” existed as specialists for the various specialized branches of medical science. (Genzken 18, Genzken Ex. 17.)
Further, at the end of August 1943, important changes in the form of the organization were effected by order of Himmler, so that by way of a clinical and organizational concentration of the entire medical services of the SS, Dr. Genzken had to turn over his entire pharmaceutical equipment and hygiene institutes, as well as four office chiefs to the office of the Reich Physician SS and Police. Thereby these institutes were under the sole supervision and responsibility of the Reich Physician from this time onwards.
It must be emphasized that Dr. Genzken himself never was in the foreground as a scientist.
During the First World War he was in the navy and concerned with the organization of the medical services for submarines, then he was for 15 years a general practitioner in a small town, was then occupied with organizational duties in the Reichswehr Ministry, and then with similar duties in the Waffen SS; he never held a chair or a professorship and did not have the honorary title of “Professor”.
As in the course of the trial the Hygiene Institute of the Waffen SS was often connected with the experiments, may I be allowed to point out the following:
The Hygiene Institute of the Waffen SS was the only one in the home country. It was not only available for the hygienic problems of the Waffen SS, but also for all other organizations of the SS and therewith also for the Reich Physician for his scientific researches. During the dispute between Grawitz and Dr. Genzken before the Chief of the SS Operational Main Office, the fields of authority between the two were again clearly defined and it was expressly pointed out that the institutes and the research equipment were to remain available to the Reich Physician for his research work (Tr. p. 3789; Genzken 3, Genzken Ex. 12.).
The Hygiene Institute of the Waffen SS was, for budgetary reasons, subordinate organizationally to the Medical Office of the Waffen SS and therewith to the defendant Dr. Genzken. Despite this, however, Genzken did not have complete and sole authority over the Institute.
EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
BLOME
What connection have all these facts (concerning deterioration of the standard of the German medical profession) with the defendant Dr. Blome? He was never Chief of the German Medical Service nor was he in charge of higher education. He was merely the deputy of the Reich Chief Physician, and as such his only legitimate task was to direct the medical professional associations. Then again he only served in this capacity as the deputy of Dr. Conti (who has been frequently mentioned here), and he had to work within the limits imposed by Dr. Conti. If the prosecution intends to be fair, it may hold Dr. Conti responsible for the abuses and mismanagement which occurred. It was he who, as Under Secretary in the Reich Ministry of the Interior, was in charge of the whole federal public health system. He, therefore, was the actual Reich Chief Physician, not Dr. Blome who would never have been indicted at all if Dr. Conti had not committed suicide and a deputy had not been needed, even after his death, to represent him in the dock. From the very beginning Dr. Blome had nothing to do with medical studies. He was only concerned with the doctors after they had completed their studies and training and were subjected to the disciplinary authority of the Reich Chamber of Physicians as licensed physicians. If the medical training was no good, if medical officers were released with insufficient scientific knowledge or with bad or wrong professional ethics, then the professor may be considered responsible for this if their teaching did not reach the required goal. On the other hand perhaps the heads of the clinics were responsible. Perhaps they did not imbue their practitioners and assistants with the proper professional ethics. Whatever the case may have been, one should not merely look around for a scapegoat to shoulder the moral responsibility.
After all Blome was not consulted in 1935 when the Nuremberg laws against Jewish citizens were enacted, nor in 1938 and the years following when Jewish doctors were gradually prevented from practicing. Blome is in no way responsible for this. These laws were promulgated by the Reich, that is, by the supreme national authority. They were ordered by Reich law and they not only affected the medical profession but also applied to all independent professions and to the entire economic life. They destroyed the economic existence of the Jewish doctor as well as that of the Jewish attorney, author, and businessman. The medical professional organization was not asked at the time whether it agreed to these measures—as a matter of fact, it was only subsequently informed of the Reich laws enacted and consequently was confronted with accomplished facts. If these laws and government orders were crimes against humanity, very well, then the statesmen and the ministers who introduced such laws can be held responsible for them, also the Reichstag deputies who enacted such laws, and the government agencies which published these laws and regarded them as generally binding. But it would be unfair today to try to impose the moral guilt for this development upon a man who was always a mere subordinate executive agent with no independent authority to give orders; a man who always fought against the manifestations of radicalism and tried wherever possible to have the federal laws enforced without harshness. This, for instance, is proved by the affidavit of Dr. Strakosch (Blome 22, Blome Ex. 21) who himself had two Jewish grandparents and who owed the defendant Blome the preservation of his economic existence and who can confirm from his own experience that Blome was never one of the fanatical and ruthless types of the Hitler regime. Dr. Strakosch confirmed that Blome always intended to act as a mitigating influence and that Blome was purely an idealist and not an opportunist in his political convictions.
[139] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[140] 66 Supreme Court 340 (1946).
[141] Law Reports of Trials of War Criminals, vol. IV, pp. 3-4, London, 1948.
[142] Law Reports of Trials of War Criminals, vol. IV, p. 2, London, 1948.
[143] Trial of the Major War Criminals, vol. I, p. 306, Nuremberg, 1947.
[144] Final plea is recorded in mimeographed transcript, 14 July; 1947, pp. 10797-10817.
[145] Final Plea is recorded in mimeographed transcript, 16 July 1946, pp. 10942-10971.
[146] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10850-10873.
[147] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[148] Trial of the Major War Criminals, vol. I, p. 288, Nuremberg, 1947.