In view of the fact that, in principle, the law in force at the time is applicable, as the defendants lived under this law and it was binding for them, the question is, therefore, to be examined within the framework of Article 47 of the German Military Penal Code. According to this provision, a subordinate who obeys is liable to be “punished as an accessory if it is known to him that the order given by the superior concerned an act which has for its purpose to commit a general or military crime or offense.”
However, it is not correct, as is sometimes accepted, that Article 47 of the German Military Code itself settles the question in how far military orders are either binding or not binding. This is a question of public and administrative law. But it must always concern an “order regarding service matters,” the same as in other military conditions, that is to say, something which “pertains to military service.” These assumptions are immediately present both in the case of the defendant Karl Gebhardt and in that of the defendant Fritz Fischer. Both were medical officers of the Waffen SS, therefore a unit of the German Wehrmacht in which especially the principle of obedience was strongly pronounced. Karl Gebhardt was Fritz Fischer’s immediate superior; in matters of duty, his order to assist with the medical experiments to be undertaken was a binding order for the young medical officer Fischer.
In the investigation of the legal questions resulting from these circumstances, we will separate the case of the defendant Karl Gebhardt, where the “order” was issued from a very high authority, namely, from the Head of the State and the Commander in Chief of the Wehrmacht, from the case of the defendant Fritz Fischer, in which there is a question of an especially close relationship to his immediate military superior. Later, I will return especially to the general questions of public law concerning the command of the Fuehrer.
The evidence has shown that the order for testing the effectiveness of sulfanilamide emanated from the highest authority, namely, from the Commander in Chief of the Wehrmacht personally. The reasons of justification of the probable acceptance of the wartime state of emergency and the balancing of interests, as discussed fully already in the investigation of the case of the defendant Karl Gebhardt, gain importance independently first in the person of the defendant Fritz Fischer. But they have influence, of course, on the legality or illegality of the order. The investigation of this question has shown that the given order as such was legal. Even if one would not want to take this for granted, however, for a subordinate even an illegal order of a binding nature is of moment.
Article 47 of the German Military Penal Code, as already observed, lets the punishment of the subordinate stand, if “it was known” to the latter that the order of the superior “concerned an act which had for its purpose to commit a general or military crime or offense.” In all other cases the punishment touches only the commanding superior.
Just as in most military courts of other armies, the judicial practice concerning Article 47 of the German Military Penal Code also shows the tendency to a vast limitation of the penal responsibility of the subordinate. That this tendency has grown from the purpose “of guaranteeing the performance of the duty of obedience obligatory to the subordinate, in the interest of military discipline and the Wehrmacht’s constant readiness for battle,” changes nothing in the fact as such. Here it is a matter of evaluating the legal position at the time the act was committed.
Article 47 of the German Military Penal Code establishes a penal responsibility on the part of the subordinate only if it was known to him that the order concerned an act the purpose of which was a crime or an offense. German judicial practice demands in addition a definite knowledge on the part of the acting subordinate; accordingly, cases of mere doubt (conditional intent) or mere obligation to know (negligence) are expressly excluded. Neither is the idea satisfactory that the performance of the order resulted objectively in the committing of a crime or an offense. On the contrary, the superior must have intended this and this fact must have been known to the subordinate.
In applying these principles, there cannot be any doubt that these suppositions were not fulfilled either in the case of the defendant Karl Gebhardt, or in the case of the defendant Fritz Fischer—to say nothing at all of the defendant Herta Oberheuser. Both of these defendants regarded the order given them by the Head of the State as a measure of war which was conditioned by special circumstances caused by the war itself, and by means of which a question should be answered which was of decisive importance not only for the wounded, but beyond that, should furnish a contribution in the struggle for the foundations of life of the German people and for the existence of the Reich. Both defendants were convinced at that time that the order given them should have any other purpose but the committing of a punishable act.
Then, in regard to the particular position of the defendant Fritz Fischer, the meaning of an order of the immediate military superior is to be investigated. At the beginning of the experiments, the defendant Fritz Fischer had the rank of a first lieutenant. He took part in the experiments at the direct command of his military and medical superior who held the rank of general. In view of the surpassing authority of the defendant Karl Gebhardt, as surgeon and Chief of the Hohenlychen Clinic and in view of his high military position, a refusal was completely out of the question.
On principle, no other points of view but those already discussed apply here either. Whether the order is a direct or an indirect one offers no reason for difference. In the case of the defendant Fritz Fischer, however, the following is still to be considered: whether it was known, etc., to the subordinate is always to be especially examined according to the special circumstances of the moment. At the same time, of course, a decisive part is played by the fact that the order for these experiments was given to the defendant Fritz Fischer, not by a military superior who would not have been in a position or duly qualified to give an expert decision of this question, but by a person who not only occupied a high military rank, but beyond that had just that particular experience in the sphere in which the experiments were to be carried out. The defendant Karl Gebhardt was not only a recognized and leading German surgeon, but he had also as consulting surgeon to the Waffen SS and as chief of a surgical reserve combat unit acquired special experience in the sphere of combat surgery and in the treatment of the bacteriological infection of wounds. The reason for this order given to the defendant Fritz Fischer by his chief must have affected him all the more convincingly, as it coincided exactly with the experience which the defendant Fritz Fischer himself had gained as medical officer with the First SS Armored Division in Russia.