The defendant Handloser is also charged with special responsibility for, and participation in, Malaria, Lost Gas, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, and Epidemic Jaundice Experiments. In our view the evidence is insufficient to show any criminal connection of the defendant Handloser with regard to these experiments.
The law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war. The reason for the rule is plain and understandable. As is pointed out in a decision rendered by the Supreme Court of the United States, entitled Application of Yamashita, 66 Supreme Court [Reporter] 340-347, 1946—
“It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.”
What has been said in this decision applies peculiarly to the case of Handloser.
In connection with Handloser’s responsibility for unlawful experiments upon human beings, the evidence is conclusive that with knowledge of the frequent use of non-German nationals as human experimental subjects, he failed to exercise any proper degree of control over those subordinated to him who were implicated in medical experiments coming within his official sphere of competence. This was a duty which clearly devolved upon him by virtue of his official position. Had he exercised his responsibility, great numbers of non-German nationals would have been saved from murder. To the extent that the crimes committed by or under his authority were not war crimes they were crimes against humanity.
CONCLUSION
Military Tribunal I finds and adjudges the defendant Siegfried Handloser guilty under counts two and three of the indictment.
ROSTOCK
The defendant Rostock is charged under counts two and three of the indictment with special responsibility for, and participation in, Malaria, Lost (Mustard) Gas, Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, Epidemic Jaundice, and Spotted Fever Experiments.
Rostock was a physician of recognized ability. From 1933 to 1941 he occupied successively the positions of senior surgeon of the Surgical Clinic in Berlin, Professor of Surgery of the University of Berlin, and Deputy Director of the University Clinic. In 1941 he was appointed Director of the Surgical Clinic, and in 1942 he became Dean of the Medical Faculty of the University of Berlin. Prior to the war he had joined the NSDAP, and in 1939 he was assigned to military duty as a consulting surgeon. In 1942 he was appointed consulting surgeon to the Army Medical Inspectorate and was subordinate to the Military Medical Academy in Berlin. He attained the rank of brigadier general, medical department (reserve). In 1943 he was appointed Chief of the Office for Medical Science and Research, a department under the supervision of defendant Karl Brandt, in which position Rostock remained until the end of the war. From the time he received the last mentioned appointment, Rostock acted as Brandt’s deputy on the Reich Research Council.