Chapter VIII: Evidence and Arguments on (2)

“As a result, with respect to the military sector, the Wehrmacht
Medical Service and with it the Chief of the Medical Services of
the Wehrmacht came into being. Not only in matters of personnel
and material—even as far as this is possible in view of special
fields and special tasks which must be considered—but also with
a view to medical scientific education and research, our path in
the Wehrmacht Medical Service must and will be a unified one.
Accordingly, the group of participants in this Second Work
Conference East, which I have now opened, is differently
composed from the First Work Conference in May of this year.
Then it was a conference of the army; today the three branches
of the Wehrmacht, the Waffen SS and Police, the Labor Service
and the Organization Todt are participating and unified.

“You will surely permit that I greet you with a general welcome
and with the sincere wish that our common work may be blessed
with the hoped for joint success.

“I would, however, like to extend a special greeting to the
Reich Chief of Health Services, Under Secretary Conti, who holds
the central leadership of medical services in the civilian
sector. I see in his presence not only an interest in our work
themes, but the expression of his connection with the Wehrmacht
Medical Service and his understanding of the special importance
of the Wehrmacht in the field as well as at home. I need not
emphasize that we are as one in the recognition of the necessity
to assure and ease the mind of the soldier, that he need not
worry about the physical well-being of the homeland as far as
this is within the realm of possibility in wartime.” (_NO-922,
Pros. Ex. 435._)

Again, at the Fourth Meeting of Consulting Physicians in May 1944 the defendant Karl Brandt stressed the importance of Handloser’s position, saying—

“Generaloberstabsarzt Handloser, you, a soldier and a physician
at the same time, are responsible for the use and the
performance of our medical officers.

* * * * *

“I believe, and this probably is the sole expectation of all
concerned, that this meeting which today starts in Hohenlychen
will be held for the benefit of our soldiers. The achievements
to date of your physicians, Herr Generaloberstabsarzt, confirm
this unequivocally, and their readiness to do their share makes
all of us proud and—I may also say—confident.

* * * * *

“It is good simply to call these things by their names and to
look at them as they are. This meeting is the visible expression
of it—it is, it shall be, and it must be so in every respect;
the consulting physicians are gathered around their medical
chief. When I look at these ranks, you Generaloberstabsarzt
Handloser, are to be envied; medical experts, with the best and
most highly trained special knowledge, are at your disposal for
care of the soldiers. In reciprocal action between yourself and
your medical officers, the problem of our medical knowledge and
capacity are kept alive.” (_NO-924, Pros. Ex. 437._)

This was no accolade paid to a man without power and influence. If Handloser is not responsible for the crimes committed by the medical services of the Wehrmacht, and especially of the Army and Luftwaffe, then no one is responsible.

In the number three seat we have the defendant Rostock who, as Brandt’s special deputy, was charged with the task of “centrally coordinating and directing the problems and activities of the entire Medical and Health Services” in the field of science and research. Even prior to his appointment to that position in the fall of 1943, Rostock was one of the responsible leaders of the German medical profession. In 1942 he was appointed Dean of the Medical Faculty of the University of Berlin. In the same year he became consulting surgeon to Handloser as the Army Medical Inspector. He attained the rank of Generalarzt. As Chief of the Office for Science and Research under Brandt, it was Rostock’s task to coordinate scientific research in Germany. He received reports as to the issuance of research assignments by the various agencies in Germany and determined which of such assignments should be considered “urgent”. He also served as Brandt’s alternate on the Reich Research Council.

In the number four seat we have the defendant Schroeder, who from 1 January 1944 until the end was the Chief of the Medical Service of the Luftwaffe. From 1935 until February 1940 Schroeder was Chief of Staff to his predecessor, Erich Hippke as Luftwaffe Medical Inspector. From February 1940 until January 1944 he served as Air Fleet Physician of Air Fleet 2, when he replaced Hippke as Chief of the Medical Service of the Luftwaffe. Simultaneously he was promoted to the rank of Generaloberstabsarzt. As Chief of the Medical Service of the Luftwaffe, all medical officers of the German Air Force were subordinated to him. His position and responsibility are clear and unequivocal.

In seat number five is the defendant Genzken, who, as Chief of the Medical Service of the Waffen SS, was one of the highest ranking medical officers in the SS. He joined the Nazi Party in 1926 and in 1936 he went on active duty with the SS in the Medical Office of the SS Special Service [disposal] Troops [SS Verfuegungstruppe], which subsequently became the Waffen SS. In the spring of 1937 the Medical Office of the SS was enlarged and split into two departments. Genzken was made director of the department charged with the supply of medical equipment to and the supervision of medical personnel in the concentration camps. In this capacity he was the medical adviser to the notorious Eicke, predecessor of Pohl as the commander of all concentration camps. Sachsenhausen, Dachau, Buchenwald, Mauthausen, Flossenbuerg, and Neuengamme, among others, were under the medical supervision of Genzken. Few men could have been better advised as to the systematic oppression and persecution of the hapless prisoners of these institutions.

In May 1940, Genzken became Chief of the Medical Office of the Waffen SS in the SS Operational Headquarters, with the rank of Oberfuehrer. The SS Operational Headquarters was subordinated to Gruppenfuehrer Hans Juettner and was one of the twelve main offices of the Supreme Command of the SS. While Juettner was Genzken’s military superior, his technical or medical superior was Reichsarzt SS Grawitz for whom he served as deputy on many occasions. In 1942 his position became known as Chief of the Medical Service of the Waffen SS, Division D of the SS Operational Headquarters. He attained the rank of Gruppenfuehrer in the SS and Generalleutnant of the Waffen SS [major general]. Among the offices subordinated to Genzken was that of the Chemical and Pharmaceutical Service under Blumenreuter and Hygiene under the defendant Mrugowsky. Mrugowsky was attached to Genzken’s office as a hygienist in 1940 and was at the same time Chief of the Hygiene Institute of the Waffen SS which, in turn, was subordinated to Genzken. On 1 September 1943, the Medical Service of the SS was reorganized and, among other things, Blumenreuter, Mrugowsky, and the Hygiene Institute of the Waffen SS were transferred to the Office of the Reichsarzt SS, Grawitz. Thereafter the direct subordination was to Grawitz rather than to Genzken.

And then there is the defendant Blome, Gruppenfuehrer [Major General] in the SA, Deputy Reich Health Leader, Deputy Leader of the Reich Chamber of Physicians and the National Socialist Physicians Association, Representative for the Department of Medical Study, Plenipotentiary in the Reich Research Council, and Chief of Research on Bacteriological Warfare. As the closest associate of Conti, he cannot be omitted from the list of the powerful. Conti was the highest authority in the field of civilian health administration. The decree of 28 July 1942, signed by Hitler, concerning the reorganization of the medical services, defines the position of Conti as follows:

“In the field of civilian health administration the State
Secretary in the Ministry of Interior, and the Chief of the
Health Administration of the Reich [Reichsgesundheitsfuehrer],
Dr. Conti, is responsible for coordinated measures. For this
purpose he has at his disposal the competent departments of the
highest Reich authorities and their subordinate offices.”
(_NO-080, Pros. Ex. 5._)

There was not a single medical question which did not reach the Reich Health Department of the Nazi Party and the Reich Chamber of Physicians, subordinated to which were all physicians in Germany, with the exception of those on active Service with the armed forces and in the SS. As a member of the Reich Research Council, Blome was personally connected with plans and enterprises involving criminal medical experimentation.

These were the responsible leaders of the medical services of Germany. Who, then, is missing from this illustrious gathering? During the course of the trial, we have frequently heard mentioned the names of Conti and Grawitz. Indeed, the defendants would have us believe that in these two men, together with Hitler and Himmler, resided the exclusive responsibility for the manifold crimes with which we are here concerned. I hardly need call attention to the fact that all are dead. All of them took their own lives rather than face the bar of justice. No one can deny that those men were, indeed, guilty. But this in no way serves to exonerate these defendants, who all played important roles in the mad scheme. It is a curious thing that not one of the defendants has pointed an accusing finger at a living man. If they are to be believed, all the guilty parties to these crimes are dead. According to them, justice must seek retribution only from the cadavers. The Luftwaffe defendants have been strangely silent as to Hippke, who, but for a belated capture, would have a prominent seat in the dock. Those defendants who worked with the dead criminals—such as Gebhardt, Mrugowsky, and Poppendick with Grawitz, and Blome with Conti—ask the Tribunal to say that their association was honorable and pure, that their work was in another field, that their masters’ crimes come as a great surprise and were never known to them. The evidence proves, however, that they not only knew of and supported these crimes, but also took a personal part in them.

In connection with the responsible positions of these defendants and most particularly of Karl Brandt and his assistant Rostock, Handloser, Schroeder, Genzken, and Blome, I wish to call the Tribunal’s attention to the decision of the Supreme Court of the United States in the case of _In re Yamashita_.[140] On 25 September 1945, Yamashita, the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands was charged with violation of the laws of war.[141] He thereafter pleaded not guilty, was tried, found guilty as charged, and sentenced to death by hanging. A petition for a writ of habeas corpus was filed with the Supreme Court purporting to show that Yamashita’s detention was unlawful for the reason, among others, that the charge preferred against him failed to charge him with a violation of the laws of war.

The charge stated that Yamashita, between 9 October 1944 and 2 September 1945, in the Philippine Islands, “while commander of armed forces of Japan at war with the United States of America and its Allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its Allies and dependencies, particularly the Philippines; and he * * * thereby violated the laws of war.” The military commission[142] which tried Yamashita found that atrocities and other high crimes had been committed by members of the Japanese Armed Forces under his command, that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers, and that during the period in question Yamashita failed to provide effective control of his troops as was required by the circumstances. The Supreme Court stated the question for their decision in the following language:

“It is not denied that such acts directed against the civilian
population of an occupied country and against prisoners of war
are recognized in international law as violations of the law of
war * * *. But it is urged that the charge does not allege that
petitioner has either committed or directed the commission of
such acts, and consequently that no violation is charged against
him. But this overlooks the fact that the gist of the charge is
an unlawful breach of duty by the petitioner as an army
commander to control the operations of the members of his
command by ‘permitting them to commit’ the extensive and
widespread atrocities specified. The question then is whether
the law of war imposes on an army commander a duty to take such
appropriate measures as are within his power to control the
troops under his command for the prevention of the specified
acts which are violations of the law of war and which are likely
to attend the occupation of hostile territory by an uncontrolled
soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when
violations result.”

The Court held that the charge was sufficient and that the law of war “plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.”

This decision is squarely in point as to the criminal responsibility of those defendants in this dock who had the power and authority to control the agents through whom these crimes were committed. It is not incumbent upon the prosecution to show that this or that defendant was familiar with all of the details of all of these experiments. Indeed, in the Yamashita case, there was no charge or proof that he had knowledge of the crimes. In the case before the International Military Tribunal, proof was submitted that the Reichsbank, of which the defendant Funk was president, had received from the SS the personal belongings of victims who had been exterminated in concentration camps. In that connection the Tribunal said in its judgment:

“Funk has protested that he did not know that the Reichsbank was
receiving articles of this kind. The Tribunal is of the opinion
that he either knew what was being received or was deliberately
closing his eyes to what was being done.”[143]

But we need not discuss the requirement of knowledge on the facts of this case. It has been repeatedly proved that those responsible leaders of the German medical services in this dock not only knew of the systematic and criminal use of concentration camp inmates for murderous medical experiments, but also actively participated in such crimes. Can it be held that Karl Brandt had no knowledge of these crimes when he personally initiated the jaundice experiments by Dohmen in the Sachsenhausen concentration camp and the phosgene experiments of Bickenbach? Can it be found that he knew nothing of the criminal Euthanasia Program when he was charged by Hitler with its execution? Can it be said that Handloser had no knowledge when he participated in the conference of 29 December 1941 where it was decided to perform the Buchenwald typhus crimes, when reports were given on criminal experiments at meetings called and presided over by him? Was Rostock an island of ignorance when he arranged the program for and presided over the meetings at which Gebhardt and Fischer lectured on their sulfanilamide experiments, when he classified as “urgent” the criminal research of Hirt, Haagen, and Bickenbach? Did Schroeder lack knowledge when he personally requested Himmler to supply him with inmates for the sea-water experiments? Can it be found that Genzken had no knowledge of these crimes when the miserable Dr. Ding was subordinated to and received orders from him in connection with the typhus experiments in Buchenwald, when his office supplied Rascher with equipment for the freezing experiments? Was Blome insufficiently informed in the face of proof that he collaborated with Rascher in the blood coagulation experiments, issued a research assignment to him on freezing experiments and to Hirt on the gas experiments, as well as performed bacteriological warfare and poison experiments himself?

No, it was not lack of information as to the criminal program which explains the culpable failure of these men to destroy this Frankenstein’s monster. Nor was it lack of power. Can anyone doubt that Karl Brandt could have issued instructions to Handloser and Conti that doctors subordinated to them were not to experiment on concentration camp inmates? It is no excuse to say that Hitler and Himmler approved the policy and that his efforts may have failed. Certainly they approved it. But the fact is that Brandt also approved of and personally participated in the program. He was the “highest Reich authority” in the medical services, not Himmler. The medical services were Brandt’s primary function, while Himmler had a few other tasks to keep him busy, such as running the SS, the Ministry of Interior, the German Police, and the Home Army, to mention a few.

Nothing could have been easier for Handloser than to issue a general directive that officers of the Medical Services of the Wehrmacht were to keep out of concentration camps. If he could not have done so, then we must conclude that no one could have. Handloser had no peer in the military medical services. And what Handloser could have done for all the branches of the Wehrmacht, Schroeder, Genzken, and Blome could have done with respect to the Luftwaffe, the Waffen SS, and the Reich Health Department.

The conclusion is inescapable that the crimes of these responsible leaders is a hundredfold greater than that of the wretches who executed the murderous experiments in the concentration camps. Theirs was the power, the opportunity, and the duty to control and their failure is their everlasting guilt.

c. Selections from the Argumentation of the Defense

_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
KARL BRANDT_[144]

* * * * *

To what extent is the defendant Karl Brandt implicated in the medical experiments?

The prosecution says he is implicated in almost all of them and refers to his position and his connections. They state that he was the highest Reich authority in the medical sphere; there, however, they are misled by an error of the translator, for Karl Brandt only had the powers, regulated in a general way, of an “Oberste Reichsbehoerde” [highest Reich agency], but the execution of these powers was restricted to special cases.

This appears from the three known decrees and from the explanation thereof given by the witnesses. Moreover Karl Brandt was not given these functions until 1944, when these experiments were practically finished, as is shown by the time schedule submitted to the Tribunal for comparison.

It has been proved that the defendant Karl Brandt himself in a broadcast publicly called his position as Reich Commissioner that of a “differential” (coordinator). In fact, Karl Brandt’s task was not to order but to adjust; it was a task designed to fit his character.

We have also learned from the presentation of evidence that the defendant Karl Brandt did not have the machinery at his disposal for issuing orders which was necessary for a supreme Reich authority; he lacked the staff and the means. No one who is acquainted with a government administration will think it possible under these circumstances that the defendant Karl Brandt might have been able to enforce his point of view against the resistance of the old agencies; no one will even think it probable that anything would have been done to facilitate such an attempt of the “new master.”

Consequently, Karl Brandt’s position was not such as to justify the conclusion drawn by the prosecution about his general knowledge. There was no official channel by which everything had to come to his knowledge, for he was not the superior of other authorities.

It is true that the defendant Karl Brandt was supposed to be informed about fundamental matters, that he had the right to intervene, etc. But these were only possibilities, not in conformity with conditions in practice. We have seen that Conti opposed him and that Himmler prohibited direct contact with Karl Brandt within his sphere.

Therefore, Karl Brandt can be brought into connection only with the events in which he participated directly.

Here it is striking first of all that the defendant Karl Brandt, who is supposed to have been the highest authority, appears only very rarely.

* * * * *

Now the prosecution endeavors to establish a connection of Karl Brandt with the other experiments via the Reich Research Council. It is true that one can establish such a connection theoretically on paper, but the links of the chain break when one examines them closely. Only the head of the specialized department [Fachspartenleiter] judged the so-called research assignments, and he only investigated whether the aim was necessary for war, not how the experiment was to be carried out. He could not inform others of matters which he did not get to know himself.

The defendant Karl Brandt is charged further with not having protested in one case when he heard about deaths caused by experiments on persons sentenced to capital punishment in the well-known lecture on sulfanilamide. I must point out that even if this experiment had been inadmissible, silence would not be a crime for assent after the act is without importance in criminal law and one can be connected with plans and enterprises only as long as they have not come to an end.

Now the prosecution has introduced in its closing brief the new charge by which it holds the defendant Karl Brandt responsible for negligence. In this respect I should like to point out that no indictment for negligence has been brought in and that the concept of a crime against humanity committed by negligence cannot exist.

It will, therefore, be sufficient to emphasize that the alleged negligence depends on the existence of an obligation of supervision and the right to give orders through other agencies. In every state the spheres of competency are separated and it is not possible for everyone to interfere in everything because everyone is responsible for everything.

The prosecution says that the defendant Karl Brandt ought to have used his influence and have availed himself of his intimate relationship to Hitler to stop the experiments. Even presuming that he was aware of the facts as crimes, his guilt would not be of a legal but only of a political or moral nature.

Till now nobody has been held criminally responsible for the conduct of a superior or a friend; however, the Tribunal only has to consider the question of criminal law.

But in fact these close relations did not exist; the defendant Karl Brandt was the surgeon who had to be in attendance on Hitler; Dr. Morell, the latter’s personal physician, soon tried to undermine the confidence placed in Karl Brandt so that he was charged with commissions which removed him farther and farther from the sphere of his medical activity.

The alleged intimate relations were eventually crowned by the dictation of a death sentence against Karl Brandt without his having been granted even a consultation on the charges advanced against him.

* * * * *

_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
SCHROEDER_[145]

* * * * *

Your Honors, a clear distinction must be made between the periods when Professor Schroeder was not yet Chief of the Medical Service of the Luftwaffe and the time when he held that office. We are concerned here with the period from the beginning of 1940 to the end of 1943. During that period Professor Dr. Schroeder was the leading medical officer of Airfleet 2, and as such continually on service outside Germany. It was only from 1 January 1944 onwards that he held the position of Chief of Medical Service of the Luftwaffe.

This shows clearly that Professor Dr. Schroeder cannot be held responsible for all experiments in concentration camps which were carried out prior to 1 January 1944. His sphere of duties was confined to the medical care of the airfleet units under him and he was without any official points of contact with the Medical Inspectorate unless the latter was competent for his position as an airfleet doctor.

To give a picture of Professor Schroeder’s duties at that time, I draw attention to the fact that the personnel strength of Airfleet 2 amounted to 200,000 to 300,000 men.

When dealing with Professor Schroeder’s responsibility for the high-altitude experiments in Dachau, the prosecution had overlooked the fact that at the time in question, Professor Schroeder was airfleet doctor and maintained that during that time he was, after Professor Dr. Hippke, the Medical Chief, the second highest medical officer of the Luftwaffe. From that circumstance, the prosecution draws the inference that Professor Schroeder, as the second highest medical officer, was the obvious deputy for Hippke and, therefore, had to know about the most important events concerning the Medical Inspectorate.

The defendant Professor Schroeder has in his defense proved beyond doubt that he was not the most senior medical officer after Hippke and, therefore, not Hippke’s deputy. As Generalarzt and Generalstabsarzt he simply had the rank next to that of the Medical Chief, as did the other five airfleet doctors. Above him in rank were two Generalstabsaerzte, namely Generalstabsarzt Dr. Neumueller and Dr. Blaul. The former had his office in Berlin and was in fact Hippke’s deputy if and when necessary.

Professor Dr. Schroeder has also refuted the further assumption of the prosecution that his relations with Professor Dr. Hippke had been particularly close, for which reason Hippke had informed him about the high-altitude experiments. In particular the witness Dr. Augustinick, Schroeder’s personal adjutant during his service as an airfleet doctor, confirmed that relations between Hippke and Schroeder were extremely tense and unpleasant and that they confined themselves to discussing only the necessary things on the occasion of their highly infrequent official meetings.

* * * * *

Your Honors, if one surveys the conduct of Professor Schroeder during the entire period from 1940 until the end of the war, one will not be able to find one single piece of evidence to show that Professor Schroeder at any time or in any manner violated the duties which the calling of a physician or medical ethics prescribed for him. In no instance did he act in a manner which could not stand examination by a court. One may well claim that he never disregarded the maxim of Hippocrates “primum nil nocere,” but preserved it as a guiding principle of his actions as a doctor and officer of the medical services of the German Luftwaffe.

The prosecution has failed to prove that Schroeder ever ordered such an experiment during the period of time covered by the charges of the prosecution, or that he participated or had knowledge of any such experiment. It has not even been proved that it was possible or necessary for him to gain knowledge of such experiments. Professor Schroeder has clearly explained why he could not gain such knowledge. For the whole period of time from 1942 to the end of 1943 the responsibility must rest on Professor Hippke, but not on Professor Schroeder.

* * * * *

_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
ROSTOCK_[146]

* * * * *

In the opening statement General Taylor said that the Reich Commissioner for the Medical and Health System was to be regarded as the supreme Reich authority. (_Tr. p. 19._) The emphasis on this word is confusing and contradicts the authentic Document NO-082, Prosecution Exhibit 7 which states, “In this capacity his agency is a supreme Reich authority.” In this decree, then, the word “the” is missing. But this is most essential. For the decree signifies that it is one of many “supreme Reich authorities,” whereas the type of expression chosen by General Taylor must lead one to conclude that it was the only “supreme Reich authority” in the Department of Health. But, as the evidence has shown, this was not true. In his opening statement on 9 December 1946 (_Tr. p. 19_) General Taylor said: “Rostock’s position comprised the activities of the medical societies, the medical universities, and the Reich Research Council.”

During this trial none of the numerous German medical societies, with the exception of Ahnenerbe, have been attacked. I want to point out here that, first of all, the Ahnenerbe cannot be considered as a medical society, as is proved beyond doubt by the plan of organization submitted to this Tribunal. (_Sievers 2, Sievers Ex. 4_; _Sievers 3, Sievers Ex. 6_.) And let me point out that Rostock testified (_Tr. p. 3296_) that during the war he did not know this society or even its name, and that on 11 April 1947 the witness Sievers stated (_Tr. p. 5788_) that Ahnenerbe’s medical institutes for scientific research of military value were not subordinate to the Commissioner General for the Medical and Health System, that means, were not subordinate to the office directed by Rostock.

Neither were the medical universities subject to his supervision. They were subordinate to the Reich Ministry of Education.

I shall deal with the Reich Research Council later on. First, I would like to deal with the _Office for Science and Research_. As far as the incorporation into the German state machinery of the Office of the Commissioner General or the Reich Commissioner for the Medical and Health Services is concerned, I refer to Dr. Servatius’ statements.

Without a doubt, the prosecution has gained the wrong impression of the extent, actual activity, and influence on other agencies of the Office for Science and Research.

Rostock has dealt with this question in detail during direct examination. The Tribunal will certainly still have a recollection of his statement. Rostock actually had no supervisory authority over research work of the branches of the Wehrmacht and the SS.

Brandt’s, and thus also Rostock’s, commission did not comprise all medical affairs but only special tasks as was testified quite clearly here by the witness Lammers on 7 February 1947. (_Tr. p. 2667._) And the assignment given Rostock did not include supervision of practical research. (_Tr. p. 2449._) On 23 April 1947 Professor Rose quite correctly described the situation in Germany (_Tr. p. 6300_) when he said that the central planning of medical research in Germany is a phantom born 1½ years after the end of the war. True, attempts were made to correct the impossible situation created by the lack of a central direction of science in Germany. Attempts were made but the leading German politicians recognized the importance of science too late.

Germany did not have an institution with the competency and the financial means of the American “Office of Scientific Research and Development” under Dr. Vannevar Bush which, under the direction of the same man, was taken over into the United States’ peace organization under the name of “Joint Research and Development Board.” The relationship of Rostock’s agency to the SS must be discussed briefly, for all experiments which play a part in these proceedings were, after all, carried out in concentration camps which came under the jurisdiction of the SS. Rostock himself was never a member of the SS. Apart from that, he had no other relations of any kind with the SS. When the agency of the Commissioner General for the Medical and Health System was created, Hitler, in the presence of Himmler, made it quite clear to Karl Brandt that in his (Karl Brandt’s) capacity of Commissioner General the SS was not his affair. (_Tr. p. 2324._) The practical execution of this directive has been expressly confirmed by Genzken. (_Tr. p. 3780._) Furthermore, the decree of 25 August 1944 (_NO-082, Pros. Ex. 7_), which lists the agencies to which the Reich Commissioner for the Medical and Health System could give directives, does not mention the SS. Genzken also testified that no direct connections existed between Genzken’s and Brandt’s offices. According to the numerous affidavits submitted by Genzken (_Genzken 1, Genzken Ex. 3_; _Genzken 9, Genzken Ex. 9_; _Genzken 6, Genzken Ex. 10_; _Genzken 8, Genzken Ex. 11_; _Genzken 3, Genzken Ex. 12_; _Genzken 5, Genzken Ex. 13_; _Genzken 16, Genzken Ex. 14_; _Genzken 17, Genzken Ex. 15_; _Genzken 15, Genzken Ex. 16_) only Grawitz was competent for scientific research within the SS. Genzken also testified that Rostock never gave instructions in research affairs to the SS. (_Tr. p. 3780._)

Gebhardt testified on 4 March that Grawitz was never subordinate to Karl Brandt and that Brandt never even had the right to give directives to Grawitz. (_Tr. p. 3977._) He testified further that Himmler wanted to create a “science exclusively for the SS” and that the university people had resisted that attempt. However, Rostock must quite definitely be considered an exponent of university scientists. The proof for the correctness of Himmler’s intention of a “science exclusively for the SS” is contained in a letter, dated 22 September 1942, from SS Gruppenfuehrer Berger to the Reich Leader SS. (_Karl Brandt 120, Karl Brandt Ex. 35._)

When in the instruction of 15 May 1944 (_NO-919, Pros. Ex. 460_) Himmler fixed the formalities for the carrying out of experiments on prisoners, it was natural that the names of Rostock or Karl Brandt were not mentioned in it. This instruction was not sent to Karl Brandt even for information purposes as is revealed by the document itself. This should be sufficient proof that Rostock had no influence on research activities within the SS or the concentration camps. During discussion of the individual experiments it has already been pointed out that he did not even know of them.

In regard to research commissions given to the medical chiefs of the Luftwaffe, Schroeder had claimed (_NO-449, Pros. Ex. 130_)—and during cross-examination he was again reproached for this document (_Tr. p. 3695_)—that all research assignments had to go through Rostock’s office. In his affidavit Schroeder testified that this was an erroneous description. (_Rostock 11, Rostock Ex. 10._) In another interrogation on 27 February 1947 by Dr. Krauss (_Tr. p. 3695_) Schroeder expressly confirmed the correctness of this affidavit. For it had only been agreed that a carbon copy of the research commission given out would be sent to Rostock. His approval of the assignment of commissions was not required. The witness Wuerfler, too, confirmed this during his cross-examination by Dr. Krauss on 19 February 1947. (_Tr. p. 3142._) And in his affidavit, Becker-Freyseng testified that the Luftwaffe did not commission Rostock’s office to carry out research by way of experiments on human beings. (_Rostock 10, Rostock Ex. 9._)

During the hearing of evidence on 2 June 1947 in the case of Becker-Freyseng, it was discussed in detail how research commissions happened to come about, how reports were made on them and that the means by which results were obtained were not prescribed; and that a real control by the agency giving out the commissions was neither exercised nor possible. I refer to the transcript which contains significant testimony in this connection. (_Tr. pp. 8317, 8320, 8321, 8324-8326._)

And now I would like to turn to the problems connected with the _Reich Research Council_. Here the prosecution has charged Rostock with responsibility because from the beginning of 1944 on he was Brandt’s deputy in his capacity as a member of the presiding council of this body. The fact itself is not, but the responsibility, especially in the sense of penal law or morals, must be denied. I deny the prosecution’s assertion, leading up to Mr. McHaney’s statement of 10 December 1946 (_Tr. pp. 96 and 144_), that Rostock exercised a “supervisory control” over the Reich Research Council or—on the occasion of submitting a letter from Rascher about freezing experiments (_NO-432, Pros. Ex. 119_)—that the “Reich Research Council as a whole is implicated in a criminal manner.”

The question of the Reich Research Council has been cleared up sufficiently during the examinations of Karl Brandt, Rostock, Blome, Sievers, as well as by the affidavits of the Chief of the Managing Committee of the Reich Research Council, Mentzel. (_Rostock 13, Rostock Ex. 12_; _Sievers 42, Sievers Ex. 43_.) As the crux emerges in this connection the fact that those responsible for the assignment of research commissions were, exclusively, the managers of the special sections and their authorized agents and plenipotentiaries who in turn were directly responsible to Hermann Goering.[147] Rostock was not among them. The members of the presiding board had no supervisory duty over and no right to issue directives to the managers of the special sections.

The members of the presiding board were informed about research carried out through the printed reports, the so-called “Red Booklets.” It can be assumed “that the prosecution is in possession of these booklets. The entire files of the Reich Research Council were handed over to the American authorities by Professor Osenberg and some documents from these files have been submitted during this trial.”

* * * * *

If the “Red Booklets” contained a single paragraph which could be used to prove the prosecution’s claims, it can be assumed with certainty that these booklets would have been submitted here. But this was not done. From this the conclusion can be drawn with certainty that the members of the Presiding Council of the Reich Research Council did not receive any information about criminal experiments. And, as quoted before in this connection, Mr. McHaney himself admitted during the cross-examination of Rostock that he did not believe that, for example, Haagen informed the Reich Research Council about his experiments in the concentration camps.

Haagen made detailed statements on the coming into being of research commissions in general and, also in particular, on that of the commissions he gave out, and on the right and the duty of control held by the agency giving the commission. (_Tr. pp. 9417-9419._)

* * * * *

_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
HANDLOSER_

* * * * *

It is the duty of the Inspector of the Army Medical Service, as Chief of the Army Medical Service, to insure within the scope of his official supervision that the intermediate superiors are able to perform their duties. He also has to see to it that the military information and report channels are well organized in order to guarantee the required survey of the _whole_ complex and the reporting and immediate investigation of unusual _individual_ cases. This requires the greatest possible care in the _selection_ of the subordinate leading medical officers, as well as periodic inspections to be carried out by the officers selected.

Professor Handloser has submitted an affidavit to this Tribunal concerning the reporting systems pertaining to military medical matters of the Wermacht branches. (_Handloser 65, Handloser Ex. 62._)

This document reveals the exemplary organization of the Message and Report Organization, including the sphere of the consulting expert physicians. The handling of the reports on “special occurrences” seems to me to be of special importance for the problem under discussion here. It was a standing order for the whole Wehrmacht that every office, including the offices of the medical service, had to report to the superior office immediately and by the quickest method each occurrence of each circumstance outside the bounds of normal events. (_Handloser 65, Handloser Ex. 62._)

Professor Handloser as Inspector of the [Army] Medical Service and Surgeon General [Army Medical Chief (Heeresarzt)] was the Chief of the Medical Service for all fronts and the zone of the interior and was responsible to the Commander in Chief of the Army and to the Commander of the Replacement Army. The 26,500 medical officers of the army were subordinated to him. His field of office and the extent of his work were, therefore, extremely wide.

To handle such a large field of work properly—in Handloser’s case it also included the office of the Chief of Army Medical Service—a division of labor had to be made into time, space, and facts. The organization and the progress of work in the sphere of the Army Medical Inspector and the Chief of the Army Medical Service was explained by Professor Handloser in his affidavit. (_Handloser 29, Handloser Ex. 4._) According to this the basic and most important questions were dealt with and decided upon in any case by Professor Handloser as the chief of the highest office. In this connection I refer to the testimony of Dr. Wuerfler (_Tr. p. 3135_) and affidavit of Schmidt-Bruecken. (_Handloser 62, Handloser Ex. 58._) Special attention has to be paid here to incoming mail (messages, reports, letters). In the Handloser affidavit (_Handloser 29, Handloser Ex. 4_), the following is stated:

“All letters and packages, unless they were marked ‘secret’ or
‘top secret’ (Mil.) went to the registry. Here they were opened,
the date stamp was affixed by the registrar who simultaneously
marked the letter for delivery to the Chief of Staff, or to the
various section chiefs direct. The Chief of Staff in turn marked
those communications which were to be submitted to the medical
chief with a cross in colored pencil.

“Secret and top secret (Mil.) material was handled in a special
manner. This material was entered in a journal, and then
directed to the attention of the Chief of Staff who in turn
determined which documents were to be submitted to, or brought
to the attention of, the medical inspector immediately or after
they had been dealt with.”

This arrangement could be made without prejudicing a regular settlement since the authorities in question were under the command of specially qualified people (department chiefs) headed by the Chief of Staff who supervised the daily business routine and was responsible for all business matters.

With regard to Handloser it must be borne in mind that during the war he was very rarely present in the head office (Berlin). Owing to Handloser’s double function as an army doctor and Army Medical Chief, and furthermore as a result of the division of the Army Medical Inspectorate into two parts for the front and the zone of the interior, Handloser necessarily had to spend most of his time at army headquarters and at the front. He could only be present in Berlin for about one-tenth of the time. (_Tr. p. 3135._) Furthermore, it became necessary to staff the offices at home with specially qualified medical officers since they had to act mainly on their own initiative in performing their tasks.

The Chief of Staff of the Army Medical Inspectorate, for instance, was a Generalarzt; the chiefs of the individual departments were Oberstaerzte. In order to do justice to the burden and the responsibility which Handloser had been shouldering, one must visualize the tasks and scope of work connected with the Medical Inspectorate. Owing to the war these tasks had been intensified to the utmost limits, there was the expansion of the theaters of operation and the personal problems of 26,500 medical officers. One will also realize that Handloser could only attend to the most important and the most basic problems.

The Chief of Staff and the departmental chiefs, as was their duty, determined which matters were of sufficient basic and vital importance to be referred for decision to the Army Medical Chief.

It must be considered most unlikely for the highest authority (i. e., the chief) of a large sphere of activity to have knowledge of all happenings within this sphere.

Furthermore, actual facts do not confirm that the person exercising the _highest powers_ of command within the military hierarchy of the army is in some degree the originator of all orders executed by a subordinate in his hierarchy. If an order has been issued, one must determine who of all the supervising chiefs of the offices in this hierarchy is the originator responsible, under criminal law, for this order. If _no_ special order was issued one must examine whether the incriminating behavior on the part of the defendant personally was prompted by circumstances within the scope of responsibility, under criminal law (such as orders and regulations which rendered possible the criminal behavior of a subordinate or appropriate consent to commit the criminal offense, _before_ its initiation or its completion).

Only if the prosecution maintains and proves (_a_) that the behavior of a subordinate constitutes a punishable offense, and (_b_) that _this_ action in particular was the result of an order issued by the superior, or of his consent given prior to the offense, can the defendant be charged as an abettor, offender, accomplice, or participator.

This exhausts all possible modes of behavior _prior_ to the criminal offense. Whatever happened afterwards _cannot_ have any relevant bearing on this legal evidence. This is _impossible_ since all causality is lacking.

With regard to the question of a possible offense against the duties of a supervisor, the following must be said: According to Art. 147 of the German Military Penal Code “Whoever neglects to carry out the task incumbent upon him of supervising his subordinates either intentionally or through negligence” is liable to punishment. According to German theory and judicial practice, the application of this law presupposes the existence of a _direct_ relationship between superior and subordinate.

If anything inadmissible or punishable happens in the sphere of duty this might be attributed to the fact that the supervising official neglected his duty, but it is also possible that it occurred through no fault of the supervising official. In the first instance the supervising official is liable to punishment according to Art. 147 of the Military Penal Code; this, however, does not apply in the latter case. The question only arises of whether in the former case the supervising official has to answer _before criminal law_ for the action of his subordinate. This must be answered in the negative. An offense against the duties of service supervision constitutes in itself an offense. It does _not_ automatically demand that the supervising official should be punished for the criminal offense committed by the subordinate, for according to the criminal laws of all civilized countries, a person can only be made responsible before criminal law for an offense committed by _himself_, i. e., if the supervising official can be considered an accomplice or participant in the crime of a subordinate. Only _thus_ can the passage of count one, 3 of the indictment be understood. This provides for a responsibility before criminal law for others, “for whose actions the defendants are responsible.”

The prerequisites for this case have been set forth above.

* * * * *

_The position of Professor Handloser as Chief of the Armed Forces Medical
Service_

* * * * *

The prosecution asserts that Handloser as Chief of the German Armed Forces Medical Service had the _supreme supervision_ and _command_ of the medical services of the three branches of the armed forces as well as of the Waffen SS. This is a _fundamental_ error which is based on the incomprehensible statement of the chief prosecutor in his opening statement:

“Under the OKW came the High Commands of the three branches of
the Wehrmacht—the Navy (OKM), the Army (OKH), and the Air Force
(OKL).”

From the verdict of the IMT, I quote the following in regard to the Chief of the Supreme Command of the Armed Forces (OKW) who was the superior of the defendant Handloser:

“Keitel [as Chief of the Supreme Command of the Armed Forces]
did not have command authority over the three Wehrmacht branches
* * *.”[148]

From this the prosecution should have drawn the logical conclusion that, if the superior of Handloser, Keitel, had no powers of command over the three branches of the armed forces and their supreme commanders, then Professor Handloser, as his subordinate, also could have had no powers of command over the medical chiefs attached to the staff of the supreme commanders. The evidence has corroborated this. (_Tr. pp. 2860-3, 3129-30, 3219, 3557._)

The prosecution refers for proof of the contrary only to the statement of the former Air Force Chief Hippke in another trial. According to that Hippke is supposed to have testified that Professor Handloser had been his _professional_ superior. The incorrectness of this statement is proved by the opposing testimonies given under oath by Professor Dr. Schroeder who succeeded Hippke and of Generalarzt Dr. Hartleben (_Tr. pp. 3219-20, 3225_), as well as of Generalarzt Dr. Wuerfler (_Tr. pp. 3129-30_). The evidence submitted, combined with the contents of the decree of 1942, has shown that it was the duty of the Chief of the Armed Forces Medical Service to direct the adjustment of _personnel_ and _material_ affairs within the branch of the armed forces as is evidenced by the first sentence of the decree. Within the scope of this sphere of duties, Professor Handloser was charged with the combination or—as it was generally called—the coordination of all _common_ problems in the field of the Armed Forces Medical Service. The task of coordination given Professor Handloser did not mean that thereby all common problems automatically _came under his jurisdiction_. It was rather his duty to examine _which_ part of the immense medical service was suitable for coordination. Generalarzt Dr. Wuerfler has aptly called this a “program of future fields of endeavor”. In this connection see also Professor Schroeder (_Tr. pp. 3557, 3558_). Whenever Handloser thought that a certain department was suitable for coordination, he tried to reach an agreement with the medical chiefs of the branches of the armed forces; for since he had no powers of command, the coordination could only take place in conjunction with the medical chiefs. After coordination had been accomplished, he was empowered to issue “directives” in this field which did not have the character of an order. Hartleben replies to the question of my colleague Dr. Steinbauer:

“Directives give general guiding principles, an order must be
carried out to the letter.”

Wuerfler expresses the same in the following manner:

“A superior has the authority to give orders. One can only speak
of a right to issue directives where there exists no authority
to give orders and no relationship of superiority.”

Research is a field which by its nature is unsuitable for coordination. For, while it is possible to alleviate personnel and material deficiencies in the personnel and material fields of the medical service by coordination, or in other words to achieve a practical useful effect, such is not the case with respect to research. The prosecution also questioned Professor Rostock regarding the problem of coordination in the field of research and argued that through such a coordination, that is to say, such a concentration of research activities which were carried on in various places, personnel and material could be allocated more effectively. Professor Rostock has made some remarks on this account which are of fundamental importance because they disprove the thesis of the prosecution with objectively convincing reasons. According to him, many conditions in the military and medical fields are suitable for coordination, while research _cannot_ be coordinated. It is better for the aim in view when _several_ scientists work on the _same_ research subject, than if only one office were engaged in this activity. Professor Rostock says quite rightly:

“If someone were to say to me, give this matter all your
attention, and the same thing is being worked on at this place
and that, then, in all probability, I should have looked for
reasons _why_ it was necessary for _both_ places to be doing the
same thing.”

And again:

“I would regard it as an _absolute_ mistake to say to one
scientist: You are not allowed to work on that any longer, the
other one is working on that * * *.” (_Tr. p. 3352._)

Witness Hartleben, too, took the same point of view during cross-examination. (_Tr. p. 3217._) To the question of the prosecutor:

“Would it not have been the task of the Chief of the Armed
Forces Medical Service to coordinate the separate research
activities in the same field in order to make the most
advantageous use of available personnel and material”?

he replied:

“In my opinion the Chief of the Armed Forces Medical Services
must in such a case make an investigation; because it is after
all the case in science and research that very often it becomes
necessary to pursue many different ways in order to arrive at
some aspired goal, and the case may occur—and I can imagine it
very well—where it is desirable to have several scientists
engaged on the same problem * * *.”

Therewith Rostock confirms the defense argument of Handloser on this count. Summing up: The end aspired to by coordination—saving of personnel and material—is incompatible with the very nature of successful research. The order for the coordinating of personnel and material can, therefore, never be applied to the field of research.

Quite another thing is the creation of working groups within the same field of research. The purpose of the creation of such a working group was not to be a saving of personnel and material but mutual information and discussion in order to check how far the individual researchers had advanced by different routes.