However, they still continued the experiments with human beings in another manner. This was the dry-cold process, an operation carried out during the period January-March 1943. The modus operandi of this experiment was to place the subject outdoors at night in a nude state, cover him with a linen sheet, and then pour cold water over him hourly. After several operations of this character, Rascher complained that it was a mistake to cover the subjects even with a linen sheet. He must be utterly naked, otherwise “the air cannot get at the person.” And from then on the subjects suffered their torture without covering of any kind. Even if it could be assumed that the test could have the slightest modicum of value, it is not understood why the subject had to be utterly naked. As the purpose of the experiment, it is presumed, was to ascertain the reaction of a soldier’s body to a frozen state, there is no reason why the subject could not wear some clothes, if only the merest undergarment, because it is scarcely conceivable that a soldier or aviator would be without some clothing on his back. On this subject, Neff testified—
“The next experiment was a mass experiment when the prisoners were also put outside naked at night. The temperature of one of them was measured with a galvanometer, the others with a thermometer. Rascher was present during approximately eighteen to twenty experiments of that type, but I can not remember exactly how many deaths occurred and if deaths occurred in connection with these experiments. I would like to say with certain reservations that approximately three deaths occurred during that period.” (T-429.)
On the character of the subjects Neff stated—
“Of the experimental subjects subjected to air-cooling experiments, none were people who were sentenced to death. They were prisoners of various nationalities. There were also German political prisoners and ‘green’ prisoners.
“Q. And these prisoners had not volunteered, had they?
“A. No.” (T-429.)
V. DISCUSSION AND CONCLUSIONS
(a) Responsibility of Milch as to Count One of Indictment
Article II of Control Council Law No. 10, promulgated by the Allied Control Council, representing the nations of the United States, Great Britain, France, and Russia, proclaims the ill-treatment or deportation to slave labor of civilian populations of occupied territories, or the ill-treatment of prisoners of war, to be war crimes, punishable by death, imprisonment, or other penalties.
It is sufficient for this Tribunal to cite Control Council Law No. 10 as authority for its action in this case. Since, however, the Control Council came into being after the ending of the war, and since the laws which it published necessarily also followed the termination of hostilities, it has been argued by defense counsel that it does not comport with justice and reason that a defendant should be condemned for an act which, prior to its commission, was not accepted in international law as a crime. From the day of surrender Germany has been without a government of its own, and as the Allied powers are exercising quasi-sovereign jurisdiction in practically all phases of German relations, both internal and external, the very circumstances of Germany’s present political situation not only justifies but demands that the Control Council establish government in its three fundamental phases; namely, the judiciary, the executive, and the legislative. Otherwise chaos would fling Germany into even a more precipitous abyss than the one into which she has fallen, and the supreme and perhaps irreparable disaster, arrested by Allied intervention, would be upon her.