a. Introduction

Article II 4 (b) of Control Council Law No. 10 states that—“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 defendants argued, however, that superior orders freed them from criminal responsibility entirely. They also argued that superior orders to engage in the conduct alleged as criminal constitute a mitigating circumstance.

Extracts from the closing statement of the prosecution on the same point appears on pages 957 to 958. A summation of the evidence on this point by the defense has been taken from the final pleas on behalf of the defendants Brack and Fischer. It appears below on pages 959 to 970. This argumentation is followed by two sections from the testimony of defendants on pages 970 to 974, extracts from the examination of defendant Karl Brandt by Judge Sebring, and an extract from the cross-examination of defendant Rose.

b. Selection from the Argumentation of the Prosecution

EXTRACTS FROM THE CLOSING STATEMENT OF THE
PROSECUTION[[149]]

The defense of Handloser is a general denial. He says in effect that: I was a soldier. I was in charge of the medical administration of the Wehrmacht, but had no power and no right to issue orders, and that whatever may have happened, I am not responsible for it. It is interesting to note that this defense is very similar to that put forward by Field Marshal Keitel[[150]] in this courtroom approximately a year ago. He was represented by the same defense counsel. Keitel also said that he could not issue orders. We have already discussed in some detail the position of Handloser, and it has been established beyond a shadow of a doubt that he was the supreme authority in the military medical services. We need not stop to consider the practical difference between an order and a directive. We have pointed out that the opportunity and power to control the participation of the military medical services in these crimes was his. The evidence shows that Handloser was connected with a number of criminal medical experiments including the typhus and other vaccine experiments both in Buchenwald and Natzweiler, and the freezing, sulfanilamide, jaundice, gas, and the gas oedema experiments, among others.

Rudolf Brandt also pleads superior orders in mitigation. There is no evidence that Himmler ordered Brandt to participate in any crime. Brandt did so willfully. There is no evidence that Brandt retained his position out of fear. He flourished in it. Nothing would have been easier for him than to be replaced by request or feigned inefficiency. Brandt was not a soldier on the field of battle. His activities were far removed from the confusion of the front lines. He did not act in the spontaneous heat of passion; he had full time to consider and reflect upon his course of action. He continued in his position from 1933 until his arrest by the Allies in 1945, no less than 12 years. This fact alone removes any basis for mitigation. Moreover, assuming that Brandt was ordered to commit the criminal acts which are the subject of this trial, when there is no fear of reprisal for disobedience, obedience represents a voluntary participation in the crime. Such is the case with Rudolf Brandt. Finally the doctrine of superior orders cannot be considered in mitigation where such malignant and numerous crimes have been continuously and ruthlessly committed over a period of many years.

What has been said with respect to Brandt applies equally to the defendant Fischer who also pleads superior orders. He knew at the time he performed these experiments that he was committing a crime. He knew the pain, disfigurement, disability, and risk of death to which his experimental victims would be subjected. He could have refused to participate in the experiments without any fear of consequences. This he admitted in saying, “It was not fear of a death sentence or anything like that, but the choice confronting me was to be obedient or disobedient during war, and thereby set an example, an example of disobedience.” (Tr. p. 4374.) Such an admission removes any basis for mitigation. A soldier is always faced with the alternative of obeying or disobeying an order. If he knows the order is criminal, it is surely a hollow excuse to say it must be obeyed for the sake of obedience alone.