Chapter VIII: Evidence and Arguments on (1)

IMPORTANT ASPECTS OF THE CASE

A. Applicability of Control Council Law No. 10 to
Offenses Against Germans During the War

a. Introduction

Under count III of the indictment, “Crimes against Humanity”, the prosecution alleged that the defendants had engaged in medical experiments “_upon German civilians_ and nationals of other countries” and that the defendants had participated in executing “the so-called ‘euthanasia program’ of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, _including German civilians_, as well as civilians of other nations”. [Emphasis added.] Insofar as these offenses involved German nationals, the defense argued that international law was not applicable. The defense argued that under, the Charter annexed to the London Agreement, crimes against humanity within the meaning of the Charter do not exist unless offenses are committed “in the execution of, or in connection with, any crime within the jurisdiction of the Tribunal”. Although the analogous provision of Control Council Law No. 10 does not include the words of limitation “in the execution of, or in connection with any crime within the jurisdiction of the Tribunal”, the defense argued that Control Council Law No. 10 was only “an implementation law” of the London Agreement and Charter, and hence could not increase the scope of the offenses defined by the London Charter. Pointing to the section of the judgment of the International Military Tribunal entitled “The law relating to war crimes and crimes against humanity”,[119] the defense noted that the IMT stated: “to constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal”,[120] that is, crimes against peace or war crimes. Although the indictment in the Medical Case did not allege that crimes were committed against German nationals before the outbreak of the war on 1 September 1939, the defense further argued that any offenses against German nationals committed after 1939 had not been shown to be “in execution of, or in connection with” crimes against peace and war crimes and hence were not cognizable as crimes within the jurisdiction of the Tribunal.

Extracts from the closing statement of the prosecution appear below on pages 910 to 915. A summation of the evidence on this question by the defense has been taken from the closing brief for defendant Karl Brandt. It appears below on pages 915 to 925.

b. Selection from the Argumentation of the Prosecution

_EXTRACTS FROM THE CLOSING STATEMENT OF THE PROSECUTION_[121]

* * * * *

_The Law of the Case_

Before proceeding to outline the prosecution’s case, it may perhaps be desirable to anticipate several legal questions which will undoubtedly be raised with respect to war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10. Law No. 10 is, of course, the law of this case and its terms are conclusive upon every party to this proceeding. This Tribunal is, we respectfully submit, bound by the definitions in Law No. 10, just as the International Military Tribunal was bound by the definitions in the London Charter. It was stated in the IMT judgment that:[122]

“The jurisdiction of the Tribunal is defined in the Agreement
and Charter, and the crimes coming within the jurisdiction of
the Tribunal, for which there shall be individual
responsibility, are set out in Article 6. The law of the Charter
is decisive and binding upon the Tribunal * * *.”

* * * * *

In outlining briefly the prosecution’s conception of some of the legal principles underlying war crimes and crimes against humanity, I shall, with the Tribunal’s permission, adopt some of the language from the opening statement of the prosecution in the case against Friedrich Flick, et al., now pending before Tribunal IV. [See Vol. VI.] General Taylor there said—

* * * * *

“Law No. 10 is * * * a legislative enactment by the Control
Council and is therefore part of the law of and within Germany.
One of the infirmities of dictatorship is that, when it suffers
irretrievable and final military disaster, it usually crumbles
into nothing and leaves the victims of its tyranny leaderless
amidst political chaos. The Third Reich had ruthlessly hunted
down every man and woman in Germany who sought to express
political ideas or develop political leadership outside of the
bestial ideology of nazism. When the Third Reich collapsed,
Germany tumbled into a political vacuum. The declaration by the
Allied Powers of 5 June 1945 announced the ‘assumption of
supreme authority’ in Germany ‘for the maintenance of order’ and
‘for the administration of the country’, and recited that—

‘There is no central government or authority in Germany
capable of accepting responsibility for the maintenance
of order, the administration of the country, and
compliance with the requirements of the victorious
powers.’

“Following this declaration, the Control Council was constituted
as the repository of centralized authority in Germany. Law No.
10 is an enactment of that body and is the law of Germany,
although its substantive provisions derive from and embody the
law of nations. The Nuernberg Military Tribunals are established
under the authority of Law No. 10,[123] and they render judgment
not only under international law as declared in Law No. 10, but
under the law of Germany as enacted in Law No. 10. The
Tribunals, in short, enforce both international law and German
law, and in interpreting and applying Law No. 10, they must view
Law No. 10 not only as a declaration of international law, but
as an enactment of the occupying powers for the governance of
and administration of justice in Germany. The enactment of Law
No. 10 was an exercise of legislative power by the four
countries to which the Third Reich surrendered, and, as was held
by the International Military Tribunal:[124]

‘* * * the undoubted right of these countries to legislate for
the occupied territories has been recognized by the civilized
world.’”

War crimes are defined in Law No. 10 as atrocities or offenses in violation of the laws or customs of war. This definition is based primarily upon the Hague Convention of 1907 and the Geneva Convention of 1929, which declare the law of nations at those times with respect to land warfare, the treatment of prisoners of war, the rights and duties of a belligerent power when occupying territory of a hostile state, and other matters. The laws and customs of war apply between belligerents, but not domestically or among allies. Crimes by German nationals against other German nationals are not war crimes, nor are acts by German nationals against Hungarians or Romanians. The war crimes charged in this indictment all occurred after 1 September 1939, and it is therefore unnecessary to consider the somewhat narrow limitation of the scope of war crimes by the International Military Tribunal to acts committed after the outbreak of war. One might argue that the occupations of Austria and the Sudetenland in 1938, and of Bohemia and Moravia in March 1939, were sufficiently similar to a state of belligerency to bring the laws of war into effect, but such questions are academic for purposes of this case.

* * * * *

In connection with the charge of crimes against humanity, it is also anticipated that an argument will be made by the defense to the effect that crimes committed by German nationals against other German nationals cannot constitute crimes against humanity as defined by Article II of Control Council Law No. 10 and hence are not within the jurisdiction of this Tribunal. The evidence of the prosecution has proved that in substantially all of the experiments prisoners of war or civilians from German-occupied territories were used as subjects. This proof stands uncontradicted save by general statements of the defendants that they were told by Himmler or some unidentified person that the experimental subjects were all German criminals or that the subjects all spoke fluent German. Thus, for the most part, the acts here in issue constitute war crimes and hence, at the same time, crimes against humanity. Certainly there has been no proof whatever that an order was ever issued restricting the experimental subjects to German criminals as distinguished from non-German nationals. If, in this or that minor instance, the proof has not disclosed the precise nationality of the unfortunate victims or has even shown them to be Germans, we may rest assured that it was merely a chance occurrence.

Be that as it may, the prosecution does not wish to ignore a challenge to the jurisdiction of the Tribunal even though it is of minor importance to this case. One thing should be made clear at the outset: We are not here concerned with any question as to jurisdiction over crimes committed before 1 September 1939, whether against German nationals or otherwise. That subject has been mooted and is in issue in another case now on trial, but the crimes in this case all occurred after the war began.

Moreover, we are not concerned with the question whether crimes against humanity must have been committed “in execution of or in connection with any crimes within the jurisdiction of the Tribunal.” The International Military Tribunal construed its Charter as requiring that crimes against humanity be committed in execution of, or in connection with, the crime of aggressive war. Whatever the merit of that holding, the language of the Charter of the International Military Tribunal which led to it is not included in the definition of crimes against humanity in Control Council Law No. 10. There can be no doubt that crimes against humanity as defined in Law No. 10 stand on an independent footing and constitute crimes _per se_. In any event, the crimes with which this case is concerned were in fact all “committed in execution of, or in connection with, the aggressive war.” This is true not only of the medical experiments, but also of the Euthanasia Program, pursuant to which a large number of non-German nationals were killed. The judgment of the International Military Tribunal expressly so holds.[125]

Thus, it is clear that the only issue which is raised in this case as to crimes against humanity is whether the Tribunal has jurisdiction over crimes committed by Germans against Germans. Does the definition of crimes against humanity in Control Council Law No. 10 comprehend crimes by Germans against Germans of the type with which this case is concerned? The provisions of Law No. 10 are binding upon the Tribunal as the law to be applied to the case.[126] The provisions of Section 1(c) of Article II are clear and unambiguous. Crimes against humanity are there defined as—

“Atrocities and offenses, including but not limited to murder,
extermination, enslavement, deportation, imprisonment, torture,
rape, or other inhumane acts committed against any _civilian
population_, or persecutions on political, racial, or religious
grounds whether or not in violation of the domestic laws of the
country where perpetrated.” [Emphasis supplied.]

The words “any civilian population” cannot possibly be construed to exclude German civilians. If Germans are deemed to be excluded, there is little or nothing left to give purpose to the concept of crimes against humanity. War crimes include all acts listed in the definition of crimes against humanity when committed against prisoners of war and the civilian population of occupied territory. The only remaining significant groups are Germans and nationals of the satellite countries, such as Hungary or Romania. It is one of the very purposes of the concept of crimes against humanity, not only as set forth in Law No. 10 but also as long recognized by international law, to reach the systematic commission of atrocities and offenses by a state against its own people. The concluding phrase of the definition of crimes against humanity, _which is in the alternative_, makes it quite clear that crimes by Germans against Germans are within the jurisdiction of this Tribunal. It reads “or persecutions on political, racial, or religious grounds _whether or not in violation of the domestic laws of the country where perpetrated_.” This reference to “domestic laws” can only mean discriminatory and oppressive legislation directed against a state’s own people, as for example, the Nuernberg Laws against German Jews. [Emphasis supplied.]

The matter is put quite beyond doubt by Article III of Law No. 10 which authorizes each of the occupying powers to arrest persons suspected of having committed crimes defined in Law No. 10, and to bring them to trial “before an appropriate tribunal.” Paragraph 1(d) of Article III further provides that—

“Such Tribunal may, in the case of crimes committed by persons
of German citizenship or nationality against other persons of
German citizenship or nationality, or stateless persons, be a
German court, if authorized by the occupying authorities.”

This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10 according to the definitions contained therein in the discretion of the occupying power. This has particular reference to crimes against humanity, since the application of crimes against peace and war crimes, while possible, is almost entirely theoretical. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American zone of occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.

What would be the effect of a holding that crimes by Germans against Germans can under no circumstances be within the jurisdiction of the Tribunal? Is this Tribunal to ignore the proof that tens of thousands of Germans were exterminated pursuant to a secret decree, because a group of criminals in control of a police state thought them “useless eaters” and an unnecessary burden, or that German prisoners were murdered and mistreated by thousands in concentration camps, in part by medical experimentation? Military Tribunal II in the Milch case held that crimes against nationals of Hungary and Romania were crimes against humanity. There is certainly no reason in saying that there is jurisdiction over crimes by Germans against Hungarians but not against Germans.

The judgment of the International Military Tribunal shows a clear recognition of its jurisdiction over crimes by Germans against Germans. After reviewing a large number of inhumane acts in connection with war crimes and crimes against humanity, the Tribunal concluded by saying that—

“* * * from the beginning of the war in 1939 war crimes were
committed on a vast scale, which were also crimes against
humanity; and insofar as the inhumane acts charged in the
indictment, and committed after the beginning of the war, did
not constitute war crimes, they were all committed in execution
of, or in connection with the aggressive war, and therefore
constituted crimes against humanity.”[127]

Since war crimes are necessarily also crimes against humanity, the broader definition of the latter can only refer to crimes not covered by the former, namely, crimes against Germans and nationals of countries other than those occupied by Germany. Moreover, the prosecution in that case maintained that the inhumane treatment of Jews and political opponents _in Germany_ before the war constituted crimes against humanity. The Tribunal said in this connection—

“With regard to crimes against humanity there is no doubt
whatever that political opponents were murdered in Germany
before the war, and that many of them were kept in concentration
camps in circumstances of great horror and cruelty. The policy
of terror was certainly carried out on a vast scale, and in many
cases was organized and systematic. The policy of persecution,
repression, and murder of civilians in Germany before the war of
1939, who were likely to be hostile to the government, was most
ruthlessly carried out. The persecution of Jews during the same
period is established beyond all doubt.”[128]

The Tribunal was there speaking exclusively of crimes by Germans against Germans. It held that such acts were not crimes against humanity, as defined by the Charter, not because they were crimes against Germans, but because they were not committed in execution of, or in connection with, aggressive war. Indeed, the Tribunal went on to hold that the very same acts committed after the war began were crimes against humanity. No distinction was drawn between the murder of German Jews and Polish or Russian Jews. And, moreover, no distinction was drawn between criminal medical experimentation on German and non-German concentration camp inmates or the murder of German and non-German civilians under the Euthanasia Program. The Tribunal held them all to be war crimes and/or crimes against humanity.

c. Selection from the Argumentation of the Defense

_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
KARL BRANDT_

* * * * *

_The Punishable Crime Against Humanity_

The criminality of the crime against humanity is based on Law No. 10 of the Control Council for Germany. Article II of this law states—

“1. Each of the following acts is recognized as a crime:

* * * * *

_c._ Crime against humanity * * *.”

The concept of the crime against humanity has not been established and it is questionable whether crimes against humanity according to Law No. 10 also refer to such acts as have been committed on German nationals by German nationals. The decision of this question is of particular significance since the medical experiments with which the defendants are charged and the mercy killings executed were, in the first place, carried out on German nationals.

The question here is not to establish whether such acts are against humanity but whether they are crimes against humanity punishable according to Law No. 10 which were committed knowingly and willfully. If measures taken against German nationals do not come under the law, the evidence of the prosecution to be examined is restricted mainly to those cases in which certain foreigners were affected, and in addition, evidence must be produced proving that the defendant was aware of the fact that foreigners too had actually been involved by these measures.

It is to be understood from Law No. 10 that it is merely an _implementation law_ to the London Agreement of 8 August 1945 and the statute belonging to it. This has been expressly stressed in the introduction, and beyond that the London Statute and the Moscow Declaration of 30 October 1943 have been declared inseparable components of the law according to Article I.

The legally pre-eminent London Statute therefore is decisive for the interpretation of the substantive law. Article 6(c) of this statute provides that crimes against humanity can be considered punishable only if they were committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal * * *”. This jurisdiction, however, extends only to crimes against peace and to war crimes. The punishable crime against humanity, therefore, is restricted to the latter. The prosecution, however, has only recently championed a different opinion. In Case 5 before Tribunal IV, the case against Flick and others,[129] the prosecution declared in its opening statement on 19 April 1947 that the clause: “in connection with a crime within the jurisdiction of the tribunal” has a different meaning from what it expresses. The clause is to signify that the Tribunal is not to deal with individual crimes but only with such crimes as have been committed on _a large scale_ and are therefore within the jurisdiction of the trial.

This meaning of the clause was not apparent to the International Military Tribunal, the prosecutors of the signatory powers at that time, nor to those who later commented on the verdict, and I do not believe that one can agree with the newly established interpretation of the prosecution. The decision of the _International Military Tribunal_ is authoritative for the interpretation since it was pronounced by the judges of the signatory powers who were expressly appointed for application of the new law. _The high authority_ of the International Military Tribunal is emphasized by Ordinance 7, Article X, according to which its actual findings are binding for the later courts.

This International Military Tribunal, however, has ruled that the punishable crime against humanity is a _dependent, subsidiary crime_ and that it can only be considered a crime if it has been committed in connection with a war crime or a crime against peace. The verdict of the International Military Tribunal[130] in rejecting the criminality of crimes against humanity committed prior to the war states the following:

“The Tribunal is of the opinion that revolting and horrible as
many of these crimes were, it has not been satisfactorily proved
that they were done in execution of, or in connection with, any
such crime.”

The _prosecution before the International Military Tribunal_ has on its part endeavored to prove such a connection; this would not have been necessary if it had not considered this connection a part of the specification of the crime against humanity. Professor Donnedieu de Vabres, the French judge of the International Military Tribunal, expressed his attitude to this limitation of the punishable crime against humanity after the pronouncement of the verdict in a lecture quoted by the prosecution in the Flick case;[131] his opinion can be considered important. The French judge deplores the limitation of the crime against humanity, but he confirms it. This limitation is no figment of the imagination but the _necessary result_ of the prevailing international law; it has its origin in the concept of _sovereignty_.

It is the purport of the _Moscow Declaration_ and the London Statute, both of which have been incorporated into Law No. 10, to deal only with the crimes that affect the relations between nations. These relations are to be safeguarded and for that reason crimes are to be punished which are significant according to international law and which are connected with war crimes and crimes against peace. The “_international_” crimes are to be punished.

This significance of the international crime to be understood from the point of view of international law is especially clearly expounded in a book written by Professor Trainin who was the official advisor on judicial matters for the _Soviet Union_ in the proceedings in Case I, the International Military Tribunal. This is a book entitled “The Criminal Responsibility of the Hitlerites” published by the Law Institute, Academy of Science in the Soviet Union, through [edited by] the academician Vishinsky. The book was written at the time the statute originated. According to this, it is not the meaning and purpose of “international criminal law” to impose punishment for crimes which have no effect _beyond the borders of their own country_ and which do not involve the _sphere of international law_.

The fact that no thought was given to punishment of crimes committed within the borders of Germany is evident from the _Moscow Declaration_ of 30 October 1943. In this declaration crimes are mentioned exclusively which have been committed in other countries to which the accused are to be _returned_.

If there could still be doubts with regard to the interpretation of the subsidiary nature of the crime against humanity, these doubts are eliminated by the _Berlin Addendum Minutes_ [Zusatzprotokoll] added to the statute, dated 6 October 1945. In these minutes the subsidiary nature of the crime against humanity is elucidated by means of a _correction_, the apparent insignificance of which is the very thing that serves to emphasize its importance. According to this, the four Allied Main Powers, as the signatories of the statute, meet again only for the purpose of transforming a _semicolon into a comma_ and it appears in the minutes that this was done because the meaning and intentions of the agreements and the statute require it.

Article 6 (c) of the statute was originally worded as follows and even at present is reproduced in many copies in the same form as far as punctuation is concerned:

“(c) CRIMES AGAINST HUMANITY: namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war ‘;’ or
persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.”

The wording of the Berlin Addendum Minutes [Protocol] dated 6 October 1945 in this context reads as follows:[132]

“Whereas an Agreement and Charter regarding the Prosecution of
War Criminals was signed in London on the 8th August 1945, in
the English, French, and Russian languages,

“And whereas a discrepancy has been found to exist between the
originals of Article 6, paragraph (c), of the Charter in the
Russian language, on the one hand, and the originals in the
English and French languages, on the other, to wit, the
semicolon in Article 6, paragraph (c), of the Charter between
the words ‘war’ and ‘or’, as carried in the English and French
texts, is a comma in the Russian text,

“And whereas it is desired to rectify this discrepancy:

“NOW, THEREFORE, the undersigned, signatories of the said
Agreement on behalf of their respective Governments, duly
authorized thereto, have agreed that Article 6, paragraph (c),
of the Charter in the Russian text is correct, and that the
meaning and intention of the Agreement and Charter require that
the said semi-colon in the English text should be changed to a
comma, and that the French text should be amended to read as
follows:

“(c) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat,
l’extermination, la réduction en esclavage, la déportation, et
tout autre acte inhumain commis contre toutes populations
civiles, avant on pendant la guerre, ou bien les persécutions
pour des motifs politiques, raciaux, ou réligieux, lorsque ces
actes ou persécutions, qu’ils aient constitué ou non une
violation du droit interne du pays où ils ont été perpétrés ont
été commis à la suite de tout crime rentrant dans la compétence
du Tribunal, ou en liaison avec ce crime.

“In witness whereof the Undersigned have signed the present
Protocol.

“Done in quadruplicate in Berlin this 6th day of October 1945,
each in English, French, and Russian, and each text to have
equal authenticity.

For the Government of the United States of America:
[Signature] ROBERT H. JACKSON
For the Provisional Government of the French Republic:
[Signature] FRANÇOIS DE MENTHON
For the Government of the United Kingdom of
Great Britain and Northern Ireland:
[Signature] HARTLEY SHAWCROSS
For the Government of the Union of Soviet Socialist Republics:
[Signature] R. RUDENKO”

Obviously it was no printing error which simply would have been corrected. This is rather a _carefully thought out limitation_ on the part of the Signatory Powers which was _clarified_ unmistakably. Without this limitation, a _precedent_ of decisive significance would have been created for _international law_ for the possibility would have existed to prosecute at any time alleged crimes against humanity in a different country. According to this, the socialist states would have assailed the social conditions in capitalistic countries as crimes against humanity, and vice versa the capitalistic states could have replied to the measures of the socialist countries with an _intervention_ as experienced by the young Bolshevist Revolution in 1919. Precisely that however was to be prevented by not recognizing an independent crime against humanity for the protection of sovereign states. Professor Donnedieu de Vabres has particularly mentioned this point of view in his lecture _as a decisive point of view of the International Military Tribunal_.

The same restrictive view of this question is taken in the latest _International Law of the United Nations Organization_ (UNO), Chapter I, Article 2, paragraph 7 of the resolution of San Francisco, concerning the establishment of UNO, dated 26 June 1945, reads that an _interference_ in matters which are within the jurisdiction of the country is _inadmissible_. Accordingly it is a fixed principle of international law even today that proceedings within a state cannot entail sanction; spoken in the words of the statute, there are no independent crimes against humanity, which might be punished as international crimes.

The opinion of Hugo Grotius and his numerous adherents is rejected and is no longer valid as international law today. _Interventions from points of view of humanity are declined_, as their motive seems suspicious to the states.[133]

Decisive alone is the practice of the members of the _body of the nations who have agreed on international law_ (Voelkerrechtsgemeinschaft) and the existing agreements on international law.

These _legal realities_ must be contrasted with the extravagant opinion, which believes that the protection of humanity can only be safeguarded by a kind of international sovereignty limited by the sovereignty of the individual states. This would be an aim which we would most sincerely desire to attain, but practice shows that there are plenty of crimes against humanity even today, but _no institution_ which has the power to punish them. There will never be such an institution, except insofar as it concerns the totally _vanquished after a total war_, to which in the future every war must lead.

Another point of view is quoted too which, in face of the decision of the IMT and while avoiding a precedent, will make crimes against humanity independent, at least insofar as application in Germany is concerned, with the effect that crimes of Germans against Germans could be punished by the military tribunals of the occupying power.

It is maintained that the _authority of the Control Commission_ for Germany _with regard to national law_ gave them the power to extend the scope of punishment for crimes against humanity, independent of the statute. This is opposed by the elementary principle of international law that the _legislative authority_ of an occupying power _only_ begins _with the moment of occupation_ and therefore can have _no retrospective force_. This principle is not in opposition to the theory that international law acknowledged a so-called “_retrospectiveness_” for war crimes in a wider sense, for this retrospectiveness only refers to the “_international crimes_” which are effective outside of one’s own country and have an immediate influence from the point of view of international law. There it serves to carry through international penal law, the realization of which would _otherwise be impossible_. Here the so-called retrospectiveness means nothing else but that international law takes precedence over national law. This international point of view can have no value for national law.

If a different rule were in operation, all persons who supported the political opponent, i. e., the so-called “_patriots_” might be punished after the occupation of a country, and Hitler’s Commissar Order [Kommissar-Befehl] according to which all active Communists were to be shot, would be sanctioned, because they were Communists and because of that were declared enemies of mankind, i. e. “criminals against humanity.”

Such a _checking of the “morals”_ of the enemy seems inadmissible; the checking of the conditions in one’s own country is a matter for the people itself; the latter may, on account of its laws, or in a revolution, prosecute its compatriots itself, on the grounds of their behavior. The IMT kept just to this fundamental idea of the statute and one cannot push this law aside arbitrarily by declaring on political grounds that _in order to secure peace and democracy_ all actions committed formerly in the country must be punished as crimes against humanity.

By such an interpretation of the authority in national law you would place yourself in strong opposition to the _proclamation of General Eisenhower_ on the occasion of the occupation of Germany; this was incorporated in Law No. 1 of Military Government, and the following was decreed under threat of death in case of violation:

“Accusation may only be brought in, sentence only be passed and
punishment be inflicted, if a law which was in force at the time
when the act was committed expressly declares this action
punishable. Punishment of acts as a result of application of
analogy or according to the opinion of the ‘sound popular
feeling’ is prohibited.”

Then attempts were made to support the unlimited legislative right of the occupying power by other means, and they referred to a “_debellatio_” or “_quasi-debellatio_” or to the fact that Germany had _capitulated unconditionally_.

Disregarding the fact that no _debellatio_ is in hand and that only the Allies pronounce themselves occupying powers, and, without mentioning that Grossadmiral Doenitz[134] _had no valid authority_ to renounce the protective international law for the German people, the valid law is clearly laid down in the _Hague Convention_. The regulations contained there in _Chapter III_ have been created just for a capitulation situation and regulate the _right of occupation_.

Unconditional capitulation does not mean renunciation of the protection of international law nor submission to arbitrariness and illegality; but _capitulation within the framework of the war conventions_, i. e., within the framework of the Hague Convention.

These provisions of the Hague Convention are not only valid for the time of actual fighting, but must be valid also for the _time after cessation of the actual hostilities_ until the peace treaty. The fundamental idea of the Hague Convention is the protection of the population against the arbitrariness of the enemy, and it cannot be permitted that after cessation of hostilities _stricter rules_ may be applied to the inhabitants of an occupied territory _than during the time of actual fighting_. In the time when the occupying power hardly seems endangered any more the arbitrariness of a belated punishment of political opponents for actions, which they did in their own country according to the laws of their own country, must not rule.

Law No. 10 cannot disregard this international law, which was acknowledged by the International Military Tribunal after it had been issued and this Tribunal will have to check the _authority of the Control Commission_ and watch that no measures are taken of which the participating peoples of the Signatory States are not informed officially, as the decisive laws were submitted to _no special ratification_.

Thus we come to the conclusion that the crime against humanity _of Law No. 10_ must be the _same as that of the statute_. Bound to a war crime it cannot be applied to actions of Germans against Germans. Connected with a _crime against peace_ you can imagine such crimes against Germans, but these crimes must be in the execution of or in connection with a crime against peace. So at least there must be a _close connection_ with a _certain crime_.

Certainly it cannot be sufficient, therefore, that an act against a German is committed during a war and objectively furthered the war, but the perpetrator _must have known_ that his action was in _connection_ with a certain crime against peace, even if he himself were not guilty of it. Without this limit, all hard measures, which are taken during a war even against one’s own population, as for example against conscientious objectors and saboteurs, ought to be punished as crimes against humanity in connection with a crime against peace, if this war is declared to be an aggressive one by the enemy, after it has been lost.

Therefore _certain_ things must be in hand which make the crime _obvious_ and prove the connection. If you were to decide otherwise the well-formulated specifications of the statute would be superfluous, and likewise the protection of the population by the Hague Convention would be set aside in an inadmissible way, as the execution of every ordered war measure can be declared “inhuman”. This interpretation of the subsidiary nature of the crime against humanity is confirmed, if one ascertains what _the real crime against humanity_ itself is _primarily_ supposed to be.

In the Flick[135] case the prosecution tried to make a definition from Article 6 (c) of the statute. They referred to the clause “_in connection with a_ crime within the jurisdiction of the court”, and interpreted this as follows: That crimes of especially _large proportions_ must be in question, since the International Military Tribunal should only deal with such. Such an interpretation cannot be maintained, as the International Military Tribunal is competent for _the most insignificant war crime too_, and for every crime against peace, regardless of its dimensions.

It must be admitted that the statute _does not contain a definition at all_ and that characteristics of a crime against humanity are _not stipulated_. If you want to find such a specification for an independent crime against humanity, which is detached from crimes against peace and war crimes, you can only fall back on the notorious “_sound feeling_” and you will get lost in the void, because its limits are not fixed, but shift according to the _political wish_.

Here you can point to the fact that Germany’s unrestrained _U-boat war_ during the First World War was then pilloried as a _crime against humanity_ and caused America to enter the war. During World War II, however, the same manner of warfare was used by the USA against Japan; this was cleared up before the International Military Tribunal by an affidavit of Admiral Nimitz.[136]

The answer to the question as to what the crime against humanity itself consists of can only be given from the _examples of the statute_ and can be supported by the _interpretation_ which the International Military Tribunal has given. According to this the _crime against humanity_ is the _aggravation_ of a war crime or a crime against peace. It differs from these crimes by its _dimension_, its _system_, and the _manner_ of execution. This can be deduced from the wording of the text of the statute where as typical examples are quoted: “extirpation, enslavement, deportation”.

In cases of crimes against humanity, according to this, actions must be in question which are punishable in themselves already, but in addition to this go further and are extended, so that they are _“qualified” crimes_. The dimension of the crimes is confirmed by the _wording of the Russian text_, which does not mention “homicide” but “homicides” in the plural, and not “persecution” but “persecutions” in the plural. The Russian text of Law No. 10 is worded similarly.

This opinion is confirmed in two places by the decision of the International Military Tribunal. The question of crimes against humanity is specially dealt with there in the section “War Crimes and Crimes against Humanity”,[137] and in the section “The Law Relating to War Crimes and Crimes against Humanity”.[138] Here the actions which are pronounced as _crimes against humanity_ are characterized as perpetrated “_on a large scale_” and as “methodically” and “systematically” executed. They are called “terror politics” and are called “terrible and brutal” as well as “utterly ruthless”, “deterrent and horrible”. Not isolated murder nor isolated imprisonment nor the isolated boycotting of a Jew is meant, but only a _general measure_ which violates “the most elementary laws of humanity”.

These are not actions which an _individual_ can execute _alone_; he needs _organized_ help for that. _Therefore_ the _perpetrator can only be a commander_; he who obeys is his tool and can only become a punishable assistant. Here the individual does _not_ act _from his own_ criminal _motive_, but he acts according to order and higher instruction. Therefore the _motive_ of the action is basically _political_. Above all, the Hague Convention had in mind common _crimes of individuals_, which are rejected by the states themselves and which they themselves prosecute by penal law in the interest of humanity. For this purpose the states had issued corresponding national laws.

In the development of this idea, it is from now on a question of preventing political measures, which are _methodically carried through by the state_, by international penal law, i. e., measures which are rejected by the International Military Tribunal as “barbaric methods” and as “methods for breaking every resistance.”

The rejection of such methods as crimes against humanity was expressed for the first time in _the Hague Convention [Annex] in Article 22_, according to which the belligerent nations have no unlimited right in the choice of means for doing damage to the enemy. Now the perpetrators of these actions are to be _punishable_.

Which means are still permitted in battle, however, and which methods are still admissible, can only be gathered from the practice of the states. If you look for an independent _measuring rod for humanity_, you must establish that things seem still admissible which force us to stop a moment. The destruction of hundreds of thousands of inhabitants of an unprotected city by bomb carpets and the use of the atomic bomb makes a discussion rather senseless, as humanity did not object to these horrors, which in future will even be surpassed.

_This measuring rod must_ not be forgotten if you proceed to the judgment of the crimes against humanity of which people are accused here. If such monstrosities are deemed admissible on one side, while similar actions on the part of the enemy are condemned, the _judgment_ of humanity can only depend on the approval or disapproval of the _purpose and aim_, and thereby loses the name of justice.

The firm ground on which the punishable crime against humanity rests, can only be the _proved war crime_ or a _definite crime against peace_.

-----

[119] Trial of the Major War Criminals, vol. I, pp. 253-255, Nuremberg, 1947.

[120] Ibid., p. 254.

[121] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[122] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.

[123] Control Council Law No. 10, Article III, par. 1(d) and 2, Military Government Ordinance No. 7, Article II.

[124] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.

[125] Ibid., pp. 231, 247, 252, 254, 301.

[126] Ibid., pp. 174, 253.

[127] Ibid., pp. 254, 255.

[128] Ibid.

[129] United States _vs._ Friedrich Flick, et al. See Vol. VI.

[130] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.

[131] Lecture of Professor Donnedieu de Vabres, Association des Etudes Internationales “Le Procès de Nuremberg.” Library of the International Military Tribunal XII 259.

[132] Translation of Protocol in this brief differed from original English copy. Authentic English version has been inserted here.

[133] Compare literature of the Soviet Union. (_Karl Brandt 188_ [not introduced in evidence].)

1. History of the all-Soviet Communist Party (Bolshevists). Under the editorial management of the commission of the Central Committee of the Communist Party 1938 (Bolshevists) approved by the Central Committee of the Communist Party OGIS State Publishing Office for Political Literature 1945, chapter 8:

“The party of the Bolshevists during foreign military
intervention and the Civil War 1918-1920, page 215.

2. “Intervention,” play in 4 acts by Salawin [Slavin] 1940, Moskau [Moscow]-Leningrad (_Karl Brandt 127_ [not introduced in evidence]).

[134] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.

[135] United States _vs._ Friedrich Flick, et al. See Vol. VI.

[136] Trial of the Major War Criminals, vol. XVII, pp. 377-381, Nuremberg, 1948.

[137] Ibid., vol. I, pp. 226-228.

[138] Ibid., vol. I, pp. 253-255.

B. Responsibility of Superiors for Acts of Subordinates

a. Introduction

Defendants who were in high positions in the German medical service rejected responsibility for the alleged criminal conduct of their subordinates. The prosecution argued that it “would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, instigators, and organizers go free.” The prosecution, for example, argued that Karl Brandt held supreme authority over all medical services in Germany, both military and civilian; that Handloser was the Chief of the Medical Services in the Wehrmacht; that Rostock was Karl Brandt’s deputy charged with the task of “centrally coordinating and directing the problems and activities of the entire medical and health service” in the field of science and research; that Schroeder was the Chief of the Medical Service of the Luftwaffe; that Genzken was the Chief of the Medical Service of the Waffen SS; that Blome was the Deputy Reich Health Leader; and that these men were clearly responsible for the acts of their subordinates in their respective sectors.

The prosecution’s summation of evidence on this question has been taken from the closing statement which appears below on pages 926 to 936. Extracts from the final pleas for the defendants Karl Brandt, Schroeder, Rostock, and the closing briefs for Handloser, Genzken, and Blome appear on pages 936 to 957.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[139]

* * * * *

_The Responsible Leaders of the Medical Services_

In view of the clear and overwhelming proof, it can only be concluded that the practice of experimentation on concentration camp inmates without their consent was an organized and systematic program. It is, therefore, appropriate to consider whether we have in this dock the leaders of the German medical services without whom these crimes would not have been possible. It would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, organizers, and instigators go free. It has been established beyond controversy that these things could not have happened without cover from the top. Who, then, were these men on the top? Their survivors, with one exception, are all in this dock.

In the number one seat we have the defendant Karl Brandt. He held supreme authority over all the medical services in Germany, both military and civilian. He joined the Nazi Party in January 1932 and the SS in 1934, in which he rose to the rank of Gruppenfuehrer [Major General]. In the latter year, at the age of 30, he became the attending physician to Adolf Hitler and retained this position until 1945. His close personal relationship to the Fuehrer explains his rapid rise to power. On the day Poland was invaded in 1939, Hitler ordered Brandt and Philipp Bouhler, the Chief of the Chancellery of the Fuehrer, to carry out the so-called Euthanasia Program.

Aside from his personal influence and intimate connection with Hitler, Brandt’s greatest power in the medical services came from his position as General Commissioner and later Reich Commissioner of the Health and Medical Services. As a result of the disastrous winter campaign in the East in 1941, Hitler established for the first time a medical and health official under his direct control by decree of 28 July 1942. This decree made Brandt the supreme authority over all medical services in Germany. It stated in part as follows:

“I empower Professor Dr. Karl Brandt, subordinate only to me
personally and receiving his instructions directly from me, to
carry out special tasks and negotiations, to readjust the
requirements for doctors, hospitals, medical supplies, etc.,
between the military and the civilian sectors of the Health and
Medical Services.

My plenipotentiary for Health and Medical Services is to be kept
informed about the fundamental events in the Medical Services of
the Wehrmacht and in the Civilian Health Service. He is
authorized to intervene in a responsible manner.” (_NO-080,
Pros. Ex. 5._)

By the same decree chiefs were also commissioned for the Medical Services of the Wehrmacht and the Civilian Health Service. The defendant Handloser became Chief of the Medical Services of the Wehrmacht, while Dr. Leonardo Conti, State Secretary for Health and the Reich Health Leader, was made Chief of the Civilian Health Services. Brandt was the superior of both Handloser and Conti, and through them had extensive powers over the Army, Navy, Luftwaffe, Waffen SS, and Civilian Medical Services. Brandt stood at the apex of power. He was subordinated to no one save the Fuehrer. He was the man to act for the Fuehrer in medical matters. The decree authorized Brandt “to intervene in a responsible manner” and directed that he be kept informed of “fundamental events”. Certainly nothing could be more fundamental than a policy of performing medical experiments involving the torture and death of involuntary human subjects.

On 5 September 1943 Hitler issued a second decree empowering Brandt “with centrally coordinating and directing the problems and activities of the entire medical and health services * * *”. (_NO-081, Pros. Ex. 6._) The order expressly stated that Brandt’s authority covered the field of medical science and research. Shortly following the issuance of this decree, the defendant Rostock was appointed by Brandt as Chief of the Office for Science and Research, with plenary powers in that field.

Finally, on 25 August 1944, the Fuehrer elevated Brandt to Reich Commissioner for the Health and Medical Services and stated that in this capacity “his office ranks as highest Reich authority.” Brandt’s position was thus equivalent to that of a Reich Minister. He was authorized “to issue instructions to the offices and organizations of the State, Party, and Wehrmacht, which are concerned with the problems of the Medical and Health Services”. (_NO-082, Pros. Ex. 7._) It is clear that this decree was issued to resolve a struggle for power between Brandt and Conti. Certainly the decree does no more than give Brandt a more august title and restate his powers, powers which he had already received as early as July 1942. Brandt testified that it merely “strengthened” his position. A service regulation issued by Keitel for Handloser, as Chief of the Medical Services of the Wehrmacht, at a time when Brandt was still General Commissioner, provided that Handloser was subject to the “general rules of the Fuehrer’s Commissioner General for the Medical and Health Services” and that Brandt had to be informed of the “basic events” in the field of the Medical Services of the Wehrmacht. In a pretrial affidavit the defendant Handloser stated that after he became Chief of the Medical Services of the Wehrmacht on 28 July 1942 “Brandt was my immediate superior in medical affairs.” (_NO-443, Pros. Ex. 10._) Schroeder stated that “Karl Brandt, Handloser, and Rostock were informed of the medical research work conducted by the Luftwaffe.” (_NO-449, Pros. Ex. 130._) In addition to his position as General and Reich Commissioner of the Health and Medical Services, Brandt was also a member of the Presidential Council of the Reich Research Council, an organization which gave financial support for criminal experiments.

In the number two seat is the defendant Handloser who held supreme power over the medical services of all branches of the Wehrmacht. Early in 1941 he was appointed Army Medical Inspector and Army Physician [Army Medical Chief (Heeresarzt)]. He held these positions until September 1944 and as such had complete command over the entire Army Medical Services which was by far the largest of the medical branches of the Wehrmacht. In his capacity as Army Medical Inspector, Handloser had subordinated to him the Consulting Physicians of the Army, the Military Medical Academy, the Typhus and Virus Institutes of the OKH at Krakow and Lemberg [Lvov], and the Medical School for Mountain Troops at St. Johann. He attained the rank of Generaloberstabsarzt, the highest military medical rank.

On 28 July 1942, Handloser was elevated to the newly created position of Chief of the Medical Services of the Wehrmacht. This was the same decree which appointed Brandt General Commissioner, to whom Handloser, on the military side, and Conti, on the civilian side, were subordinated. Handloser was charged with the coordination of the Medical Services of the Wehrmacht and all organizations and units subordinated or attached to the Wehrmacht, including the Medical Services of the Waffen SS. Prior to this decree there were four separate medical branches of the Wehrmacht, the Army, Luftwaffe, Navy, and Waffen SS, each operating independently of the other. Pursuant to this decree, Handloser was appointed to coordinate and unify their operations and was directly responsible to Keitel as Chief of the Supreme Command of the Wehrmacht (OKW). He had authority over the Chiefs of the Army, Navy, Luftwaffe, and Waffen SS Medical Services, and all organizations and services employed within the framework of the Wehrmacht, and over “_all scientific medical institutes, academies, and other medical institutions of the services of the Wehrmacht and of the Waffen SS_.” [Emphasis added.] (_NO-227, Pros. Ex. 11._) He was the adviser of the Chief of the Supreme Command and of the Wehrmacht in all questions concerning the medical services of the Wehrmacht and of its health guidance. In the field of medical science, his duties were to carry out uniform measures in the field of health guidance, _research and combating of epidemics_, and all medical matters which required a uniform ruling among the Wehrmacht, and further, _in the evaluation of medical experiences_.

One of the principal means used by the defendant Handloser in coordinating scientific research was the joint meeting of consulting physicians of the four branches of the Wehrmacht. At the Second Meeting East of Consulting Physicians in December 1942 at the Military Medical Academy, Handloser himself pointed out quite clearly the task of the Chief of the Medical Services of the Wehrmacht in unifying medical scientific research. In addressing the full meeting he said:

“The demands and extent of this total war, as well as the
relationship between needs and availability of personnel and
material, require measures, also in military and medical fields,
which will serve the unification and unified leadership. It is
not a question of ‘marching separately and battling together’,
but marching and battling must be done in unison from the
beginning in all fields.