In addition, there was the special framework in which all this took place. Fritz Fischer had been released from the combat unit on account of serious illness and had been ordered to the Hohenlychen Clinic. He was under the immediate impression of hard experience at the front. In Hohenlychen he found himself in a clinic which operated in peacetime conditions under the energetic direction of a man extraordinarily gifted in organizational and scientific matters. Every building, every installation of this recognized model institute, the numerous clinical innovations and modern methods of treatment, every one of the many successful treatments of Hohenlychen was inseparably bound up with the name of the chief physician Karl Gebhardt and gave unconditional and unlimited value to his word and his authority in his entire environment.
For all these reasons, the defendant Fritz Fischer could have had no doubt at all but that the performance of the order given him was from the medical standpoint a requisite and permissible war measure. Precisely the open carrying-out of the individual experimental measures, with the exclusion of every duty of secrecy, as well as the report of the results which was provided for in advance and also executed before a critical forum of the highest military physicians, were especially suited to nip in the bud any distrust of the justification of these experiments in the mind of the defendant Fritz Fischer.
As Fritz Fischer strictly adhered to the part-orders given to him and did not show any initiative of his own, it excludes him moreover from any responsibility concerning questions which were outside his sphere of action. It is impossible to make Fritz Fischer responsible for questions connected with the legal and medical preparation of the directives for the experiments and the cosmetic after-treatment. Apart from this viewpoint, the special conditions of public law which existed in Germany at the time of the action ought to be mentioned. They were explained by Professor Jahrreiss in his opening speech before the International Military Tribunal in the proceedings against Hermann Goering and others.[[155]] Professor Jahrreiss thereby represented the following point of view:
“State orders, whether they lay down rules or decide individual cases, can always be measured against the existing written and unwritten law, but also against the rules of international law, morals, and religion. Someone, even if only the conscience of the person giving the orders, is always asking: Has the person giving the order ordered something which he had no right to order? Or has he formed and published his order by an inadmissible procedure? But an unavoidable problem for all governmental systems lies in this: Should or can it grant the members of its hierarchy, its officials and officers, the right—or even impose on them the duty—to examine at any time any order which demands obedience from them, to determine whether it is lawful, and to decide accordingly whether to obey or refuse? No governmental system which has appeared in history to date has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right; and they were not granted it without limits. This was also the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic and is so today under the occupation rule of the four great powers over Germany.
“In as far as such a right of examinations is not granted to members of the hierarchy, the order has legal force for them.
“All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective. Certain acts of laying down rules, certain decisions on individual cases which have received legal force, are valid even when the person giving the order has exceeded his competence or has made a mistake in form.
“If only because the process of going back to a still higher order must finally come to an end, orders must exist under every government that are binding on the members of the hierarchy under all circumstances and are therefore law where the officials are concerned, even if outsiders may see that they are defective as regard content or form * * *.
“* * * The result of the development in the Reich of Hitler was at any rate that Hitler became the supreme legislator as well as the supreme author of individual orders. It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, above all during the course of this war, that he became this. Perhaps the German people are—even though with great differences between north and south, west and east—particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier.
“Finally the only thing that was not quite clear was Hitler’s relationship to the judiciary. For, even in Hitler-Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of Party officials—this has been shown by some of the speeches of the Reich Justice Leader, the defendant Dr. Frank, which were submitted here—there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the “sic jubeo” of the one man. But, apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag’s pompous declaration about Hitler’s legal position, dated 26 April 1942, was actually only the statement of what had become practice long before.