Chapter VIII: Evidence and Arguments on (3)

Such a measure proposes to counteract the exaggerated secrecy and egotistical withholding of information often noticed in the field of research. Inventors and scholars regard their discoveries as revolutionary. As prototypes of individualism they are intent on keeping the details of their research secret even, or precisely, from other scholars who work in the same field. This fact is aptly characterized in the document submitted by the prosecution. (_NO-262, Pros. Ex. 108._) I quote from this letter of the former Chief of the Air Force Medical Service, Dr. Hippke:

“The difficulties exist in quite another field. They are
questions involving the vanity of the individual scientists,
each and every one of whom wants to obtain all the results of
the research individually, and who often can only be brought to
altruistic cooperative work with the greatest difficulties.”

The Court will see from this that the creation of working groups in the field of hepatitis research in accordance with the suggestion of Dr. Schreiber at the Breslau Hepatitis Conference in June 1944 had nothing to do with coordination, but that it left the number and the _activity_ of the different scholars engaged in hepatitis research untouched. The Chief of the Armed Forces Medical Service also had in his very limited office staff no department for research. (_Tr. pp. 3218, 3224._) Only in the service regulations which became effective on 1 September 1944 (_NO-227, Pros. Ex. 11_), which however practically never went into effect. (_Tr. p. 3140_; _Handloser 29, Handloser Ex. 4_.) Under 14a one of the tasks of the Chief of the Armed Forces Medical Services was mentioned as being the taking of uniform measures in the field of medical science, including the field of research and the fight against disease. However, here, too, it was not a matter of the subordination of the research institutions of the branches of the armed forces but of examining a “problem” _whether_ cooperative work in certain fields of research was feasible. Actually, due to developments since September 1944, coordination in the field of research never took place. The research activities of the different branches of the armed forces as well as of the Waffen SS were and remained independent. What is important in this trial in regard to Handloser’s responsibility is the question _whether_ he as Chief of the Armed Forces Medical Services had any functions in the field of research and if so what they were. He himself has stated and Generalarzt Dr. Hartleben, who had an authoritative part in the drafting of the decree of 1942 (_NO-080, Pros. Ex. 5_) and of its supplementary service regulations, has declared that the research activities of the branches of the armed forces and of the Waffen SS did _not_ belong to the official department of the Chief of the Armed Forces Medical Services. For the department of research of the Air Force Medical Inspection Service the aforementioned Air Force Medical Inspector Hippke has furnished convincing proof. The prosecution submitted a letter from Hippke of 6 March 1943 to SS Obergruppenfuehrer Wolff (_NO-262, Pros. Ex. 108_) from which I quote—

“Your opinion that I as _responsible head_ of all _research
activities in medical science_ had objected to freezing
experiments on human beings and had thereby obstructed the
development is erroneous.”

Furthermore I call attention to Document NO-289, Prosecution Exhibit 72 and Document 1612-PS, Prosecution Exhibit 79, which confirm the independence of the air force research work, also to the affidavits of Professor Schroeder and Dr. Becker-Freyseng. (_Handloser 22, Handloser Ex. 33_; _Handloser 23, Handloser Ex. 34_.)

* * * * *

It is undisputed that _one_ connection existed between the two medical services, viz, the one with _that_ part of the Medical Service of the Waffen SS which was connected with the Waffen SS divisions during mobilization at the front. It was under _those_ medical offices of the army which corresponded to the respective superior military offices. The divisions of the Waffen SS came under the corps commander of the army; correspondingly, the Medical Service of the Waffen SS divisions came under the corps doctor; the medical service led via the army medical officer [Armeearzt], the army group medical officer, and the army medical chief [Heeresarzt] to the army medical inspector and above him, to the Chief of the Armed Forces Medical Service.

_None_ of these offices, neither military nor medical, could interfere with the essential “character,” the appointment of personnel equipment make up, organization, etc., of the division. The order pertained only to _mobilization_ at the front (tactical subordination). Beyond that, _all_ authority remained in the hands of the superior office of the Waffen SS, the Operational Main Office [Fuehrungshauptamt], Reich Leader SS (Himmler-Grawitz).

The mobilization of the medical units, of the field hospital ambulances and hospital trains, i. e., of the various units of the division medical officer SS, were handled by him in accordance with instructions from the division. Higher orders in regard to the care of SS wounded and sick were given to the SS division medical officer via the army corps medical officer by the army medical chief. In the ordinary course of medical matters, even the army medical officer was not included with the exception of casualty report service. The Army Medical Inspector and the Chief of the Armed Forces Medical Service had practically no occasion to interfere. That only happened when some _special event_ was reported to the higher offices.

The Chief of the Armed Forces Medical Service had the power only for the length of time of subordination to the armed forces to delegate authority, by request of the army medical chief through the Army Medical Inspector, to the army or corps medical officer to make personnel or material adjustments within his department.

_With the exception of the fighting divisions_, the Chief of the Armed Forces Medical Services had no authority over _any_ other unit or establishment of the Waffen SS, any more than over Dr. Genzken as Chief of the Waffen SS Medical Service beyond the limit of the front divisions. In summing up, then, it is to be noted that the relationship between the armed forces medical offices and those of the Waffen SS was limited in time and practice to the medically necessary tactical subordination and to the medical service during combat operations. This goes to prove that Professor Handloser did not have any influence on the medical organization of the Waffen SS, that is to say, on the entire range of affairs and provinces of the medical service and the health service. This applies especially to medical research and the institutions created for that purpose. This has been proved (_a_) by the affidavit of Professor Handloser on the diagram of the Medical Service of the Armed Forces; (_b_) by the affidavit of Professor Mrugowsky (_Handloser 17, Handloser Ex. 5_); (_c_) by the affidavit of Dr. Genzken (_Handloser 16, Handloser Ex. 6_); (_d_) by the official footnote in the service instructions of 1944 (_NO-227, Pros. Ex. 11_); (_e_) by the affidavit of Professor Gebhardt (_Tr. p. 4191_); (_f_) by the expert testimony of Hartleben, and (_g_) by the testimony of Wuerfler (_Tr. pp. 3132, 3140, 3142_).

The contention of the prosecution that Professor Handloser as Chief of the Armed Forces Medical Service had the _supervision_ of the medical service of the Waffen SS is thereby refuted.

This also invalidates the basic thesis of the prosecution on which is founded the indictment of Professor Handloser, since it has been proved that the Chief of the Armed Forces Medical Services had, in the field of medical research, neither commanding authority nor supervisory powers outside of the scope of military medical inspection.

What has been stated here for the time of the decree of 1942—1 August 1942 until 31 August 1944—applies equally to the time beginning 1 September 1944. The decree of 7 August 1944 (_NO-227, Pros. Ex. 11_) represented an extension of the original development toward coordination, without accomplishing the subordination of the medical chiefs of the branches of the armed forces as requested by the Chief of the Armed Forces Medical Services. What actually was accomplished was a change in the advisory authority he had held up to then, into commanding authority in the sphere of the technical duties to the Chief of the Armed Forces Medical Services.

Professor Handloser has testified under oath (_Handloser 29, Handloser Ex. 4_) and witness Hartleben confirmed the same in his statements that, as has already been pointed out above, nothing was changed as far as the field of research of the branches of the armed forces and of the Waffen SS was concerned. The aim of centralizing the widely separated institutions was wrecked, except in those cases which were solely conditioned by the war after 1 September 1944, particularly also owing to the fact which was brought out in the testimony that in the meantime other offices had taken over the management of the research work in the various fields (1) Reich Research Council, (2) Office for Science and Research, and (3) Society for Military Research.

In conclusion and by way of precaution, I also wish to mention the following for the consideration of the Tribunal in connection with the problem of the commanding authority of Handloser as Chief of the Armed Forces Medical Services:

_Supposing_ for a moment that Professor Handloser had had the power of command, there is nothing that speaks more convincingly for his _exoneration_ than the fact that the prosecution has not produced one single document (no order, no regulation, no letter) from which could be deduced that he had made use of his commanding authority in the sense of ordering the performance of an illegal experiment.

In view of the length of time for which he had held the position as Chief of the Armed Forces Medical Services from August 1942 until May 1944, this fact is of _decisive_ importance.

* * * * *

_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT
GENZKEN_

* * * * *

_Position and activities_

The witness Juettner states the following about his position and his activities (_Genzken 15, Genzken Ex. 16_): “Dr. Genzken’s position as Chief of the Medical Office of the Waffen SS was the position of a superior officer of the medical units of the Waffen SS. He was exclusively responsible for their training, the formation of new units and their equipment. He had to find substitutes for casualties in the fighting units.”

The Waffen SS itself was newly created in the summer of 1940. At that time it was composed of approximately 580,000 men. (_Tr. p. 3792 ff._) In addition to that there were about 320,000 casualties, so that there was a total strength of approximately 900,000 men. The official medical care of the whole Waffen SS was in the hands of the defendant Dr. Genzken. At the beginning, the medical personnel of the Waffen SS was about 800 men and at the end approximately 30,000 men. At the beginning, two hospitals were available to the Waffen SS and at the end of the war, sixty. Six hygiene institutes grew out of a single one in Berlin, etc.

Apart from that, the whole extensive medical organization during the war had to be built up by Dr. Genzken from nothing and under the particularly difficult circumstances caused by war which are sufficiently well known to the high Tribunal. The medical inspectorates of the three Wehrmacht branches could refer back to long years of experience, in the case of army and navy even tens of years. This was not the case in the young arm of the Waffen SS.

For this reason alone it is obvious that the scientific research and planning was not included in Dr. Genzken’s sphere of work, as he repeatedly emphasized during his presentation of evidence and as he underlined by the presentation of affidavits. (_Genzken 3, Genzken Ex. 12_; _Genzken 5, Genzken Ex. 13_; _Genzken 6, Genzken Ex. 10_; _Genzken 8, Genzken Ex. 11_; _Genzken 9, Genzken Ex. 9_; _Genzken 15, Genzken Ex. 16_.)

But Dr. Genzken did not even have the time to concern himself seriously with scientific matters. That was only natural. His most pressing worries were to organize newly the medical services of the Waffen SS as regards personnel and material and to look after it continuously. His position brought with it a considerable responsibility in the whole province of medical services of the Waffen SS by establishing new medical units, equipping of new hospitals so that he had no time left for any other work. It has become absolutely clear during this trial that scientific research and planning was the task of the Reich Physician SS. May I point out in this connection that all the experiments which were discussed in this trial can be traced back almost without exception to Himmler’s and Grawitz’ own initiative. Whether they were high altitude and cooling experiments or typhus and sulfanilamide experiments, all of them were started by one of Himmler’s or Grawitz’ orders. This fact is still more underlined by Document 002-PS, Prosecution Exhibit 39. It is, as it says there literally, concerned with the taking over of research work by the Reich Physician SS, Grawitz. The latter had asked at the end of 1942 that 53 officers be allotted to him for scientific research work. In the whole document, which consists of several reports of the Reich Ministry of Finance and the Reich Physician, the scientific research work in the whole of the medical sphere is mentioned again and again as directed and ordered by the Reich Physician. Even though the application was rejected, later on the lack of typhus vaccine gave, for example, Dr. Grawitz the opportunity to establish, with Himmler’s authorization, an experimental station for typhus research in the Buchenwald concentration camp as his first own scientific institute.

Grawitz has also frequently emphasized to the defendant Mrugowsky that he alone was competent for the research and planning tasks in the medical branch within the SS, and that Dr. Genzken had nothing to do with it. (_Genzken 1, Genzken Ex. 3._)

That Dr. Genzken was never interested in the activity and the sphere of work of the Reich Physician, nor even tried to be given these tasks, follows from the fact that in 1941 Himmler chose Dr. Genzken to became Grawitz’ successor. When Genzken’s superior officer, the Chief of the SS Operational Main Office [Fuehrungshauptamt] Juettner, informed him about this request, he at once rejected it energetically, as he preferred to remain in the medical service of the troops and as he thought himself not suitable for scientific research. (_Genzken 15, Genzken Ex. 16._)

Dr. Genzken during his interrogation gave the Court a detailed description of the entire staff available to him for the completion of his duties. He expressly pointed out that in the entire organization of his medical office, no office for scientific research and planning was scheduled, and that therefore, in fact no such office actually existed. (_Tr. p. 3796._) This fact is also emphasized by the fact that in the Medical Office of the Waffen SS no group of “consulting physicians” existed as specialists for the various specialized branches of medical science. (_Genzken 18, Genzken Ex. 17._)

Further, at the end of August 1943, important changes in the form of the organization were effected by order of Himmler, so that by way of a clinical and organizational concentration of the entire medical services of the SS, Dr. Genzken had to turn over his entire pharmaceutical equipment and hygiene institutes, as well as four office chiefs to the office of the Reich Physician SS and Police. Thereby these institutes were under the sole supervision and responsibility of the Reich Physician from this time onwards.

It must be emphasized that Dr. Genzken himself never was in the foreground as a scientist.

During the First World War he was in the navy and concerned with the organization of the medical services for submarines, then he was for 15 years a general practitioner in a small town, was then occupied with organizational duties in the Reichswehr Ministry, and then with similar duties in the Waffen SS; he never held a chair or a professorship and did not have the honorary title of “Professor”.

As in the course of the trial the Hygiene Institute of the Waffen SS was often connected with the experiments, may I be allowed to point out the following:

The Hygiene Institute of the Waffen SS was the only one in the home country. It was not only available for the hygienic problems of the Waffen SS, but also for all other organizations of the SS and therewith also for the Reich Physician for his scientific researches. During the dispute between Grawitz and Dr. Genzken before the Chief of the SS Operational Main Office, the fields of authority between the two were again clearly defined and it was expressly pointed out that the institutes and the research equipment were to remain available to the Reich Physician for his research work (_Tr. p. 3789_; _Genzken 3, Genzken Ex. 12_.).

The Hygiene Institute of the Waffen SS was, for budgetary reasons, subordinate organizationally to the Medical Office of the Waffen SS and therewith to the defendant Dr. Genzken. Despite this, however, Genzken did not have complete and sole authority over the Institute.

* * * * *

_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
BLOME_

* * * * *

What connection have all these facts (concerning deterioration of the standard of the German medical profession) with the defendant Dr. Blome? He was never Chief of the German Medical Service nor was he in charge of higher education. He was merely the deputy of the Reich Chief Physician, and as such his only legitimate task was to direct the medical professional associations. Then again he only served in this capacity as the deputy of Dr. Conti (who has been frequently mentioned here), and he had to work within the limits imposed by Dr. Conti. If the prosecution intends to be fair, it may hold Dr. Conti responsible for the abuses and mismanagement which occurred. It was he who, as Under Secretary in the Reich Ministry of the Interior, was in charge of the whole federal public health system. He, therefore, was the actual Reich Chief Physician, not Dr. Blome who would never have been indicted at all if Dr. Conti had not committed suicide and a deputy had not been needed, even after his death, to represent him in the dock. From the very beginning Dr. Blome had nothing to do with medical studies. He was only concerned with the doctors after they had completed their studies and training and were subjected to the disciplinary authority of the Reich Chamber of Physicians as licensed physicians. If the medical training was no good, if medical officers were released with insufficient scientific knowledge or with bad or wrong professional ethics, then the professor may be considered responsible for this if their teaching did not reach the required goal. On the other hand perhaps the heads of the clinics were responsible. Perhaps they did not imbue their practitioners and assistants with the proper professional ethics. Whatever the case may have been, one should not merely look around for a scapegoat to shoulder the moral responsibility.

* * * * *

After all Blome was not consulted in 1935 when the Nuremberg laws against Jewish citizens were enacted, nor in 1938 and the years following when Jewish doctors were gradually prevented from practicing. Blome is in no way responsible for this. These laws were promulgated by the Reich, that is, by the supreme national authority. They were ordered by Reich law and they not only affected the medical profession but also applied to all independent professions and to the entire economic life. They destroyed the economic existence of the Jewish doctor as well as that of the Jewish attorney, author, and businessman. The medical professional organization was not asked at the time whether it agreed to these measures—as a matter of fact, it was only subsequently informed of the Reich laws enacted and consequently was confronted with accomplished facts. If these laws and government orders were crimes against humanity, very well, then the statesmen and the ministers who introduced such laws can be held responsible for them, also the Reichstag deputies who enacted such laws, and the government agencies which published these laws and regarded them as generally binding. But it would be unfair today to try to impose the moral guilt for this development upon a man who was always a mere subordinate executive agent with no independent authority to give orders; a man who always fought against the manifestations of radicalism and tried wherever possible to have the federal laws enforced without harshness. This, for instance, is proved by the affidavit of Dr. Strakosch (_Blome 22, Blome Ex. 21_) who himself had two Jewish grandparents and who owed the defendant Blome the preservation of his economic existence and who can confirm from his own experience that Blome was never one of the fanatical and ruthless types of the Hitler regime. Dr. Strakosch confirmed that Blome always intended to act as a mitigating influence and that Blome was purely an idealist and not an opportunist in his political convictions.

-----

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

[140] 66 Supreme Court 340 (1946).

[141] Law Reports of Trials of War Criminals, vol. IV, pp. 3-4, London, 1948.

[142] Law Reports of Trials of War Criminals, vol. IV, p. 2, London, 1948.

[143] Trial of the Major War Criminals, vol. I, p. 306, Nuremberg, 1947.

[144] Final plea is recorded in mimeographed transcript, 14 July; 1947, pp. 10797-10817.

[145] Final Plea is recorded in mimeographed transcript, 16 July 1946, pp. 10942-10971.

[146] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10850-10873.

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

[148] Trial of the Major War Criminals, vol. I, p. 288, Nuremberg, 1947.

C. Responsibility of Subordinates for Acts Carried Out Under Superior
Orders

a. Introduction

Article II 4 (b) of Control Council Law No. 10 states that—“The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.” The defendants argued, however, that superior orders freed them from criminal responsibility entirely. They also argued that superior orders to engage in the conduct alleged as criminal constitute a mitigating circumstance.

Extracts from the closing statement of the prosecution on the same point appears on pages 957 to 958. A summation of the evidence on this point by the defense has been taken from the final pleas on behalf of the defendants Brack and Fischer. It appears below on pages 959 to 970. This argumentation is followed by two sections from the testimony of defendants on pages 970 to 974, extracts from the examination of defendant Karl Brandt by Judge Sebring, and an extract from the cross-examination of defendant Rose.

b. Selection from the Argumentation of the Prosecution

_EXTRACTS FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[149]

* * * * *

The defense of Handloser is a general denial. He says in effect that: I was a soldier. I was in charge of the medical administration of the Wehrmacht, but had no power and no right to issue orders, and that whatever may have happened, I am not responsible for it. It is interesting to note that this defense is very similar to that put forward by Field Marshal Keitel[150] in this courtroom approximately a year ago. He was represented by the same defense counsel. Keitel also said that he could not issue orders. We have already discussed in some detail the position of Handloser, and it has been established beyond a shadow of a doubt that he was the supreme authority in the military medical services. We need not stop to consider the practical difference between an order and a directive. We have pointed out that the opportunity and power to control the participation of the military medical services in these crimes was his. The evidence shows that Handloser was connected with a number of criminal medical experiments including the typhus and other vaccine experiments both in Buchenwald and Natzweiler, and the freezing, sulfanilamide, jaundice, gas, and the gas oedema experiments, among others.

* * * * *

Rudolf Brandt also pleads superior orders in mitigation. There is no evidence that Himmler _ordered_ Brandt to participate in any crime. Brandt did so willfully. There is no evidence that Brandt retained his position out of fear. He flourished in it. Nothing would have been easier for him than to be replaced by request or feigned inefficiency. Brandt was not a soldier on the field of battle. His activities were far removed from the confusion of the front lines. He did not act in the spontaneous heat of passion; he had full time to consider and reflect upon his course of action. He continued in his position from 1933 until his arrest by the Allies in 1945, no less than 12 years. This fact alone removes any basis for mitigation. Moreover, assuming that Brandt was ordered to commit the criminal acts which are the subject of this trial, when there is no fear of reprisal for disobedience, obedience represents a voluntary participation in the crime. Such is the case with Rudolf Brandt. Finally the doctrine of superior orders cannot be considered in mitigation where such malignant and numerous crimes have been continuously and ruthlessly committed over a period of many years.

What has been said with respect to Brandt applies equally to the defendant Fischer who also pleads superior orders. He knew at the time he performed these experiments that he was committing a crime. He knew the pain, disfigurement, disability, and risk of death to which his experimental victims would be subjected. He could have refused to participate in the experiments without any fear of consequences. This he admitted in saying, “It was not fear of a death sentence or anything like that, but the choice confronting me was to be obedient or disobedient during war, and thereby set an example, an example of disobedience.” (_Tr. p. 4374._) Such an admission removes any basis for mitigation. A soldier is always faced with the alternative of obeying or disobeying an order. If he knows the order is criminal, it is surely a hollow excuse to say it must be obeyed for the sake of obedience alone.

* * * * *

c. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
BRACK_[151]

* * * * *

The treatment of the question of responsibility for euthanasia in this room encounters great difficulties insofar as there is not only considerable ignorance of certain peculiarities of the German position in constitutional matters, but above all a great difference between the thinking of continental European and of transatlantic jurists on matters of constitutional statutory law. Law and morals have for centuries been sharply differentiated on the European continent in juristic and above all in legislative thinking in contrast to the states across the ocean. This historical fact must be taken into consideration, for only then can the realization be reached that in a question of _German_ constitutional law only that development can be decisive which legal training has had in Germany in deviations from the constitutional law of the Weimar Republic, since the Enabling Act of 24 March 1933 and the Head of the State Law of 1 August 1934.

With these laws Hitler was given all authority as head of the state and chief of the government, in full recognition of the Fuehrer principle which had been in operation for over a year, with approval by the plebiscite of 19 August 1934.

From this time on Hitler incorporated the will of the people, and the resulting functions. He had thus become the Supreme Legislator of the Reich. A concluding resolution of the Reichstag was only the confirmation of his primary declaration of his will.

Among the independent promulgations of laws, which were represented as direct emanations of his authority, the declarations of Hitler’s will which were at first called “decrees” and later uniformly “Fuehrer decrees” assumed the most important role. In them the distinction, still customary under the Weimar constitution, between legislative and executive is overcome, as Hitler proclaimed in his Reichstag speech of 30 January 1937 in the words: “There is only one legislative power and one executive.”

Therefore the decrees united material law with organizational measures and administrative directives, especially insofar as they were addressed only to a group of persons gathered together in a certain community. Proclamation in the Reich Law Gazette [Reichsgesetzblatt], countersigned by the competent departmental minister, and later the competent chancellery chief, no longer played a decisive role in 1937. The Fuehrer principle was already in full operation at this time. It no longer tolerated the dependence of the authority to promulgate original laws which was granted to the Fuehrer by the plebiscite of 1934 on the observance of formal regulations. The only decisive thing that remained was the fact of the proclamation of the will of the Fuehrer, not its form. Hitler’s Decree of 1 September 1939 concerning euthanasia, addressed to Brandt and Bouhler, was therefore in form a legally quite acceptable act of government of the head of the state.

My conclusions from the examination of the development in legal history of the Fuehrer principle in the Third Reich agrees with the testimony of the witnesses Lammers,[152] Engert, and Best. This testimony is underlined by the standpoint of the Reich Minister of Justice Guertner and by Schlegelberger as representatives of supreme Reich authorities, as transmitted to us by Lammers and Engert. Finally, it is affirmed by University Professor Dr. Hermann Jahrreiss, who a few days ago dealt with the questions arising in this connection in great detail and exhaustively in the Justice Case before Military Tribunal III.[153] I may ask the Tribunal in judging this legal question to consider these statements.

Brack was convinced of the legality of this decree on the basis not only of juridical but also other effective indications of much more significant independent steps taken by Hitler in domestic and foreign policy.

Brack’s conviction, that of a nonjurist, of the legality of the Fuehrer Decree, based on the explanations and information of his juristic associates and the concurring or at least nondissenting statements of the highest representatives of the Reich justice authorities at the meeting of General Public Prosecutors on 23 April 1941, can therefore not be doubted. (_Brack 36, Brack Ex. 36._)

Even if one denies the legal validity to the Hitler Decree, though I regard it as valid, Brack committed a legal error at least as far as the particular legal position of Hitler within the state is concerned, under which decree otherwise illegal activities are to be excused. This legal error is sufficient to abolish his guilt or at least the grave guilt of deliberate intent. According to the German law valid at the time, at any rate, this is the case. According to that, a so-called error outside of criminal law—which is indeed the error about the legal validity of the decree of 1 September 1939—excludes the unlawful character which is an essential of the term “deliberate intent”.

* * * * *

_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
FISCHER_[154]

* * * * *

_Acts committed under orders and in relation to a specific military
position_

The defendant Fischer participated in the experiments for testing the effect of sulfanilamide upon orders of his medical and military superior Karl Gebhardt. It is recognized in the penal code of all civilized nations that action upon orders represents a reason of exemption from guilt, even if the order itself is contrary to law, but binding for the subordinate. In examining this legal question, one proceeds from the principle that the court disregards the reasons of justification and exemption from guilt put forward by me in the case of the defendant Karl Gebhardt and considers that both the order given to the defendant Karl Gebhardt himself, as also the passing on of this order to the defendant Fritz Fischer, are contrary to law.

The adherence to a binding order, even though it be contrary to law, on the part of the subordinate creates for him a _reason of exemption from guilt and, therefore, renders him also exempt from punishment_. This question is disputed only insofar as some consider the action of the subordinate not only excused but even “justified.” Further examination of this question at issue seems, however, not necessary in these proceedings, since the result is the same in both cases, namely, the perpetrator’s exemption from punishment.

The _decisive question_ in the case on hand therefore is whether and to what extent the “order” for the sulfanilamide experiments was _binding_ for the persons carrying it out.

In view of the fact that, in principle, the law in force at the time is applicable, as the defendants lived under this law and it was binding for them, the question is, therefore, to be examined within the framework of Article 47 of the German Military Penal Code. According to this provision, a subordinate who obeys is liable to be “punished as an accessory if it is known to him that the order given by the superior concerned an act which has for its purpose to commit a general or military crime or offense.”

However, it is not correct, as is sometimes accepted, that Article 47 of the German Military Code itself settles the question in how far military orders are either binding or not binding. This is a question of public and administrative law. But it must always concern an “order regarding service matters,” the same as in other military conditions, that is to say, something which “pertains to military service.” These assumptions are immediately present both in the case of the defendant Karl Gebhardt and in that of the defendant Fritz Fischer. Both were medical officers of the Waffen SS, therefore a unit of the German Wehrmacht in which especially the principle of obedience was strongly pronounced. Karl Gebhardt was Fritz Fischer’s immediate superior; in matters of duty, his order to assist with the medical experiments to be undertaken was a binding order for the young medical officer Fischer.

In the investigation of the legal questions resulting from these circumstances, we will separate the case of the defendant Karl Gebhardt, where the “order” was issued from a very high authority, namely, from the Head of the State and the Commander in Chief of the Wehrmacht, from the case of the defendant Fritz Fischer, in which there is a question of an especially close relationship to his immediate military superior. Later, I will return especially to the general questions of public law concerning the command of the Fuehrer.

The evidence has shown that the order for testing the effectiveness of sulfanilamide emanated from the highest authority, namely, from the Commander in Chief of the Wehrmacht personally. The reasons of justification of the probable acceptance of the wartime state of emergency and the balancing of interests, as discussed fully already in the investigation of the case of the defendant Karl Gebhardt, gain importance independently first in the person of the defendant Fritz Fischer. But they have influence, of course, on the legality or illegality of the order. The investigation of this question has shown that the given order as such was _legal_. Even if one would not want to take this for granted, however, for a subordinate even an illegal order of _a binding_ nature is of moment.

Article 47 of the German Military Penal Code, as already observed, lets the punishment of the subordinate stand, if “it was known” to the latter that the order of the superior “concerned an act which had for its purpose to commit a general or military crime or offense.” In all other cases the punishment touches _only_ the commanding superior.

Just as in most military courts of other armies, the judicial practice concerning Article 47 of the German Military Penal Code also shows the tendency to a vast limitation of the penal responsibility of the subordinate. That this tendency has grown from the purpose “of guaranteeing the performance of the duty of obedience obligatory to the subordinate, in the interest of military discipline and the Wehrmacht’s constant readiness for battle,” changes nothing in the fact as such. Here it is a matter of evaluating the _legal position at the time the act was committed_.

Article 47 of the German Military Penal Code establishes a penal responsibility on the part of the subordinate only if it was _known_ to him that the order concerned an act _the purpose_ of which was a crime or an offense. German judicial practice demands in addition a _definite knowledge_ on the part of the acting subordinate; accordingly, cases of mere doubt (conditional intent) or mere obligation to know (negligence) are expressly excluded. Neither is the idea satisfactory that the performance of the order resulted objectively in the committing of a crime or an offense. On the contrary, the superior must have _intended_ this and this fact must have been _known_ to the subordinate.

In applying these principles, there cannot be any doubt that these suppositions were not fulfilled either in the case of the defendant Karl Gebhardt, or in the case of the defendant Fritz Fischer—to say nothing at all of the defendant Herta Oberheuser. Both of these defendants regarded the order given them by the Head of the State as a measure of war which was conditioned by special circumstances caused by the war itself, and by means of which a question should be answered which was of decisive importance not only for the wounded, but beyond that, should furnish a contribution in the struggle for the foundations of life of the German people and for the existence of the Reich. Both defendants were convinced at that time that the order given them should have any other _purpose_ but the committing of a punishable act.

Then, in regard to the particular position of the defendant Fritz Fischer, the meaning of an order of the _immediate military superior_ is to be investigated. At the beginning of the experiments, the defendant Fritz Fischer had the rank of a first lieutenant. He took part in the experiments at the direct command of his military and medical superior who held the rank of general. In view of the surpassing authority of the defendant Karl Gebhardt, as surgeon and Chief of the Hohenlychen Clinic and in view of his high military position, a refusal was completely out of the question.

On principle, no other points of view but those already discussed apply here either. Whether the order is a direct or an indirect one offers no reason for difference. In the case of the defendant Fritz Fischer, however, the following is still to be considered: whether it _was known, etc._, to the subordinate is always to be especially examined according to the _special circumstances of the moment_. At the same time, of course, a decisive part is played by the fact that the order for these experiments was given to the defendant Fritz Fischer, not by a military superior who would not have been in a position or duly qualified to give an _expert_ decision of this question, but by a person who not only occupied a high military rank, but beyond that had just that particular experience in the sphere in which the experiments were to be carried out. The defendant Karl Gebhardt was not only a recognized and leading German surgeon, but he had also as consulting surgeon to the Waffen SS and as chief of a surgical reserve combat unit acquired special experience in the sphere of combat surgery and in the treatment of the bacteriological infection of wounds. The reason for this order given to the defendant Fritz Fischer by his chief must have affected him all the more convincingly, as it coincided exactly with the experience which the defendant Fritz Fischer himself had gained as medical officer with the First SS Armored Division in Russia.

In addition, there was the special framework in which all this took place. Fritz Fischer had been released from the combat unit on account of serious illness and had been ordered to the Hohenlychen Clinic. He was under the immediate impression of hard experience at the front. In Hohenlychen he found himself in a clinic which operated in peacetime conditions under the energetic direction of a man extraordinarily gifted in organizational and scientific matters. Every building, every installation of this recognized model institute, the numerous clinical innovations and modern methods of treatment, every one of the many successful treatments of Hohenlychen was inseparably bound up with the name of the chief physician Karl Gebhardt and gave unconditional and unlimited value to his word and his authority in his entire environment.

For all these reasons, the defendant Fritz Fischer could have had no doubt at all but that the performance of the order given him was from the medical standpoint a requisite and permissible war measure. Precisely the open carrying-out of the individual experimental measures, with the exclusion of every duty of secrecy, as well as the report of the results which was provided for in advance and also executed before a critical forum of the highest military physicians, were especially suited to nip in the bud any distrust of the justification of these experiments in the mind of the defendant Fritz Fischer.

* * * * *

As Fritz Fischer strictly adhered to the part-orders given to him and did not show any initiative of his own, it excludes him moreover from any responsibility concerning questions which were outside his sphere of action. It is impossible to make Fritz Fischer responsible for questions connected with the legal and medical preparation of the directives for the experiments and the cosmetic after-treatment. Apart from this viewpoint, the special conditions of _public law_ which existed in Germany at the time of the action ought to be mentioned. They were explained by Professor Jahrreiss in his opening speech before the International Military Tribunal in the proceedings against Hermann Goering and others.[155] Professor Jahrreiss thereby represented the following point of view:

“State orders, whether they lay down rules or decide individual
cases, can always be measured against the existing written and
unwritten law, but also against the rules of international law,
morals, and religion. Someone, even if only the conscience of
the person giving the orders, is always asking: Has the person
giving the order ordered something which he had no right to
order? Or has he formed and published his order by an
inadmissible procedure? But an unavoidable problem for all
governmental systems lies in this: Should or can it grant the
members of its hierarchy, its officials and officers, the
right—or even impose on them the duty—to examine at any time
any order which demands obedience from them, to determine
whether it is lawful, and to decide accordingly whether to obey
or refuse? _No governmental system which has appeared in history
to date has given an affirmative answer to this question._ Only
certain members of the hierarchy were ever granted this right;
and they were not granted it without limits. This was also the
case, for instance, under the extremely democratic constitution
of the German Reich during the Weimar Republic and is so today
under the occupation rule of the four great powers over Germany.

“_In as far as such a right of examinations is not granted to
members of the hierarchy, the order has legal force for them._

“All constitutional law, that of modern states as well, knows
acts of state which must be respected by the authorities even
when they are defective. Certain acts of laying down rules,
certain decisions on individual cases which have received legal
force, are valid even when the person giving the order has
exceeded his competence or has made a mistake in form.

“If only because the process of going back to a still higher
order must finally come to an end, orders must exist under every
government that are binding on the members of the hierarchy
under all circumstances and are therefore law where the
officials are concerned, even if outsiders may see that they are
defective as regard content or form * * *.

“* * * The result of the development in the Reich of Hitler was
at any rate that Hitler became the supreme legislator as well as
the supreme author of individual orders. It was not least of all
under the impression of the surprising successes, or what were
considered successes in Germany and abroad, above all during the
course of this war, that he became this. Perhaps the German
people are—even though with great differences between north and
south, west and east—particularly easily subjected to actual
power, particularly easily led by orders, particularly used to
the idea of a superior. Thus the whole process may have been
made easier.

“Finally the only thing that was not quite clear was Hitler’s
relationship to the judiciary. For, even in Hitler-Germany, it
was not possible to kill the idea that it was essential to allow
justice to be exercised by independent courts, at least in
matters which concern the wide masses in their everyday life. Up
to the highest group of Party officials—this has been shown by
some of the speeches of the Reich Justice Leader, the defendant
Dr. Frank, which were submitted here—there was resistance,
which was actually not very successful, when justice in civil
and ordinary criminal cases was also to be forced into the “_sic
jubeo_” of the one man. But, apart from the judiciary, which was
actually also tottering, absolute monocracy was complete. The
Reichstag’s pompous declaration about Hitler’s legal position,
dated 26 April 1942, was actually only the statement of what had
become practice long before.

“The Fuehrer’s orders were law already a considerable time
before this Second World War.

“In this state order of his, the German Reich was treated as a
partner by the other states, and this in the whole field of
politics. In this connection I do not wish to stress the way (so
impressive to the German people and so fatal to all opposition)
in which this took place in 1936 at the Olympic Games, a show
which Hitler could not order the delegations of foreign nations
to attend, as he ordered Germans to the Nuernberg Party Rally in
the case of his state-shows. I should like rather only to point
out that the governments of the greatest nations in the world
considered the word of this “almighty” man the final decision,
incontestably valid for every German, and based their decisions
on major questions on the fact that Hitler’s order was
incontestably valid. To mention only the most striking cases,
this fact was relied upon when the British Prime Minister,
Neville Chamberlain, after the Munich Conference, displayed the
famous peace paper when he landed at Croydon. This fact was
adhered to when people went to war against the Reich as the
barbarous despotism of this one man.

“No political system has yet pleased all people who live under
it or who feel its effects abroad. The German political system
in the Hitler era displeased a particularly large and
ever-increasing number of people at home and abroad.

“But that does not in any way alter the fact that it existed,
not lastly because of the recognition from abroad and because of
its effectiveness, which caused a British Prime Minister to make
the now world-famous statement at a critical period, that
democracies need two years longer than the totalitarian
governments to attain a certain goal. Only one who has lived as
if expelled from among his own people, amidst blindly believing
masses who idolized this man as infallible, knows how firmly
Hitler’s power was anchored in the anonymous and innumerable
following who believed him capable only of doing what was good
and right. They did not know him personally, he was for them
what propaganda made of him, but this he was so uncompromisingly
that everybody who saw him from close-to and saw otherwise, knew
clearly that resistance was absolutely useless and, in the eyes
of other people, was not even martyrdom.

“Would it therefore not be a self-contradictory proceeding if
_both_ the following assertions were to be realized at the same
time in the rules of this trial? * * *

“* * * The functionaries had neither the right nor the duty to
examine the orders of the monocrat to determine their legality.
For them these orders could not be illegal at all, with one
exception which will be discussed later—an exception which, if
carefully examined, is seen to be only an apparent one—namely
with the exception of cases in which the monocrat placed
himself, according to the indisputable values of our times,
outside every human order, and in which a real question of right
or wrong was not put at all and thus a real examination was not
demanded.

“Hitler’s will was the ultimate authority for their
considerations on what to do and what not to do. The Fuehrer’s
order cut off every discussion. Therefore, a person who, as a
functionary of the hierarchy refers to an order of the
Fuehrer’s, is not trying to provide a ground for being exempted
from punishment for an illegal action, but he denies the
assertion that his conduct is illegal; for the order which he
complied with was legally unassailable.

“Only a person who has understood this can have a conception of
the difficult inner struggles which so many German officials had
to fight out in these years in face of many a decree or
resolution of Hitler’s. For them such cases were not a question
of a conflict between right and wrong: Disputes about legality
sank into insignificance. For them the problem was one of
legitimacy; as time went on, human and divine law opposed each
other ever more strongly and more frequently.

“Therefore, whatever the Charter understands by the orders which
it sets aside as a ground for exemption from punishment, can the
Fuehrer’s order be meant by this? Can it come within the meaning
of this rule? Must one not accept this order for what it was
according to the interior German constitution as it had
developed, a constitution which had been explicitly or
implicitly recognized by the community of states? * * *

“* * * The one supreme will became, quite simply, technically
indispensable. It became the mechanical connecting link for the
whole. A functionary who met with objections or even resistance
to one of his orders from other functionaries only needed to
refer to an order of the Fuehrer’s to get his way. For this
reason many, very many, among those Germans who felt Hitler’s
regime to be intolerable, who indeed hated him like the devil,
looked ahead only with the greatest anxiety to the time when
this man would disappear from the scene; for what would happen
when this connecting link disappeared? It was a vicious circle.

“I repeat: _An order of the Fuehrer’s was binding—and indeed
legally binding—on the person to whom it was given, even if the
directive was contrary to international law or to other
traditional values._”

So much for the statements of Professor Jahrreiss before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer’s command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.

It is true that in the face of all this, reference will be made to Article 8 of the Charter for the International Military Tribunal which reads: “The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads—

“(_b_) The fact that any person acted pursuant to the orders of
his government or of a superior does not free him from
responsibility for a crime, but may be considered in
mitigation.”

In the face of this objection the following is to be pointed out:

At the time of their actions the defendants were subject to _German_ law according to which the degree of their responsibility was determined and, even today, must justly be referred back to _that moment_. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.

Even from the above-named provision of the Law of the Control Council, the principle cannot be derived that every command of a superior should, under the aspect of Penal Law, be _irrelevant_ under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command _in itself_ does not exempt one from the responsibility for a crime; it does not, however, preclude by any means that in connection with other facts it may be relevant for this problem as well.