Without any doubt, he was compelled to make certain concessions. He was forced to camouflage, i.e., to accommodate himself outwardly to his surroundings which he was going to spy on and to remove. Every spy has to camouflage and I do not betray a secret in mentioning that in wartime many a man donned the uniform of the enemy. It is generally known that in 1942 the French General Giraud performed his escape from German captivity in the uniform of a German general.
When Sievers was a member of the party from 1929 to 1931, when later on he joined the NSDAP and the SS again, when he filled higher positions in these organizations, when he held the position of Reich Manager of the Ahnenerbe and suffered himself to be promoted to a higher rank in the SS, without any doubt at all that was part of the camouflage measures which Hielscher, Dr. Borkenau, Dr. Topf, and other witnesses call the indispensable prerequisite, the compulsory mask for the tasks of the defendant Sievers.
Nobody will pretend that these camouflages which were to render possible a legally approved, nay, desirable aim, are in themselves punishable and illegal. Sievers’ outward membership in the SS is therefore excused by its camouflage purpose. And it is equally unobjectionable that occasionally he played the part of a good Nazi. The duty of doing so had expressly been urged upon him by Hielscher. The career of the organizer or an active member of a German underground movement would have found a sudden end if he had not behaved like a Nazi.
All the more seriously must I turn to the question of Sievers’ consent to and further participation in the human experiments and the establishment of the collection of skeletons, in which third persons suffered bodily injury.
Here the question is raised where are the bounds of necessity if it involves actions which in themselves are punishable facts. The answer to this question is the essential point of the Sievers case.
The legal orders of the world set up the principle: “The legal values damaged by the action committed under necessity, must not be of a disproportionally greater value than the protected and rescued legal value.” That is the principle of proportion concerning which Wharton [“Criminal Law”], paragraph 642, says, “Sacrifice of another’s life, excusable when necessary to save one’s own.”
What were the competing legal values in the Sievers case?
On the one hand, there was the civilization of the world, the peace of the earth, humanity, the lives and existence of millions of men threatened and hurt by Hitler’s criminal government. Such actions are called crimes against peace and humanity by the new international law which threatens them with the severest punishments. The Allied Nations considered these legal values worthy of their soldiers enthusiastically going to war and death for them.
On the other hand, you will find the lives of individuals, their bodily safety, the respect and esteem of their personality, their liberty and the free expression of their will, certainly legal values of no less high value. There may have been hundreds of victims. But it was a meager number in comparison with the multitudes that Hitler, Himmler, and their accomplices had already murdered and continued murdering.
My question runs: Which of the two contending legal values is more valuable from the point of view of proportion?