Gebhardt does not seriously contend that the experimental subjects were volunteers. He admitted that he did not know whether the women consented. He testified he was not interested in that. He left it to the “legal authorities.” He did not discuss this matter with Himmler. (Tr. p. 4214.) By legal authorities, Gebhardt meant Himmler who, as he said, “had the power to execute thousands of people by a stroke of his pen.” (Tr. p. 4025.) Gebhardt, however, showed no interest whatever in the moral or legal character of that power. At one point in his testimony, he stated that the subjects were nonvolunteers forced to submit to the experiments by the State. (Tr. p. 4064.) At still another point, they were “more or less volunteers, condemned persons.” (Tr. p. 4021.)
Gebhardt’s defense, if it can be dignified with that word, is rather that the Polish women had been condemned to death for participation in a resistance movement and that by undergoing the experiments, voluntarily or otherwise, they were to have their death sentences commuted to some lesser degree of punishment whereby they would at least not be executed. This was no bargain reached with the experimental subjects; their wishes were not consulted in the matter. It was, according to Gebhardt, left to the good faith of someone unnamed to see to it the death sentence was not carried out on the survivors of the experiments. Certainly Gebhardt assumed no responsibility, or even interest, in this matter.
The prosecution points out, in connection with this alleged defense, that the proof shows that the experimental subjects who testified before this Tribunal were never so much as accorded a trial; they had no opportunity to defend themselves against whatever crimes they were said to have committed. They were simply arrested and interrogated by the Gestapo in Poland and sent to a concentration camp. They had never so much as been informed that they had been marked for, not sentenced to, death. (Tr. p. 831.) Article 30 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Hague Convention expressly provides that even a spy “shall not be punished without previous trial.” The alleged defense of Gebhardt is accordingly without merit.
Gebhardt would have the Tribunal believe that but for the experiments all these Polish girls would be dead; that he preserved the evidence now being used against him. Nothing could be further from the truth. There is no proof in the record that these women would have been executed if they had not undergone the experiments. The witness Maczka is living proof of the contrary. She was arrested for resistance activities on 11 September 1941, and shipped to Ravensbrueck on 13 September. (Tr. p. 1433.) She was not an experimental subject yet she lives today. Substantially all the Polish experimental subjects arrived in Ravensbrueck in September 1941. (Tr. pp. 788, 817, 840.) These girls had not been executed by August 1942 when the experiments began. Indeed, it was a surprise to Gebhardt, according to his testimony, that they were used at all since during July 1942 the experiments were conducted on men. There were some 700 Polish girls in that transport. (NO-877, Pros. Ex. 228; Tr. p. 4216.) There is no evidence that a substantial number were ever executed even though most of them were not experimented on.
No, the proof has shown beyond controversy that these Polish women could not have been legally executed. The right to grant pardons in cases of death sentences was exclusively vested in Hitler by a decree of 1 February 1935, Reich Law Gazette [RGBl], I, page 74. (NO-3070, Pros. Ex. 531.) On 2 May 1935, Hitler delegated the right to make negative decisions on pardon applications to the Reich Minister of Justice. (NO-3071, Pros. Ex. 532.) On 30 January 1940 (RGBl, I, p. 399), Hitler delegated to the Governor General for the occupied Polish territories the authority to grant pardons and to make denying decisions in pardon matters for the occupied Polish territories. (NO-3072, Pros. Ex. 533.) By edict, dated 8 March 1940, VOB1 GGP I p. 99, the Governor General of occupied Poland ordered with reference to the execution of the right to pardon in the case of death sentences that:
“The execution of a death sentence pronounced by a regular court, a special court or a police court martial shall take place only when my decision has been issued not to make use of my right to pardon.” [Emphasis supplied.] (NO-3073, Pros. Ex. 534.)
Assuming arguendo that the experimental subjects had all committed substantial crimes, that they were all properly tried by a duly constituted court of law, that they were legally sentenced to death, it is still clear from the decrees set forth above that these women could not have been legally executed until such time as the Governor General of occupied Poland had decided in each case not to make use of his pardon right. There has been no proof that the Governor General had ever acted with respect to pardoning the Polish women used in the experiments, or, for that matter, any substantial number of those not used in the experiments.
The only reason these 700 Polish women were transported from Warsaw and Lublin to Ravensbrueck was because the Governor General had not approved their execution. Otherwise they would have been immediately executed in Poland. At the very least, these women were entitled to remain unmolested so long as the Governor General took no action. He may never have acted or, when he did, he may have acted favorably on the pardon.
The affidavit of Schiedlausky, the camp doctor at Ravensbrueck, shows that the Governor General had not turned down a pardon when the experiments started. He said on page four of the original:
“Polish women who had been sentenced to death by court martial and who were awaiting execution, after their sentences had been approved by the Governor General, were chosen as subjects.” (NO-508, Pros. Ex. 224.)