Chapter I: Front Matter (1)

[Cover Illustration]

TRIALS
OF
WAR CRIMINALS
BEFORE THE
NUERNBERG MILITARY TRIBUNALS
UNDER
CONTROL COUNCIL LAW No. 10

VOLUME II

NUERNBERG
OCTOBER 1946-APRIL 1949

For sale by the Superintendent of Documents,
U.S. Government Printing Office
Washington 25, D. C. — Price $2.75 (Buckram)

CONTENTS

_The Medical Case_

(Introductory material and basic directives under which trials
were conducted together with Chapters I-VIII-E of Medical Case
are printed in Volume I.)

Page
VIII. Evidence and Arguments on Important Aspects of the Case
(cont’d) 1
F. Necessity 1
G. Subjection to Medical Experimentation as Substitute
for Penalties 44
H. Usefulness of the Experiments 61
I. Medical Ethics 70
1. General Principles 70
2. German Medical Profession 86
3. Medical Experiments in other Countries 90
IX. Ruling of the Tribunal on Count One of the Indictment 122
X. Final Plea for Defendant Karl Brandt by Dr. Servatius 123
XI. Final Statements of the Defendants, 19 July 1947 138
XII. Judgment 171
The Jurisdiction of the Tribunal 172
The Charge 173
Count One 173
Count Two and Three 174
Count Four 180
The Proof as to War Crimes and Crimes Against Humanity 181
Permissible Medical Experiments 181
The Medical Service in Germany 184
The Ahnenerbe Society 188
Karl Brandt 189
Handloser 198
Rostock 208
Schroeder 210
Genzken 217
Gebhardt 223
Blome 228
Rudolf Brandt 235
Mrugowsky 241
Poppendick 248
Sievers 253
Rose 264
Ruff, Romberg, and Weltz 272
Brack 277
Becker-Freyseng 281
Schaefer 285
Hoven 286
Beiglboeck 290
Pokorny 292
Oberheuser 294
Fischer 296
Sentences 298
XIII. Petitions 301
XIV. Affirmation of Sentences by the Military Governor of the
United States Zone of Occupation 327
XV. Order of the United States Supreme Court Denying Writ of
Habeas Corpus 330
Appendix 331
Table of Comparative Ranks 331
List of Witnesses in Case 1 332
Index of Documents and Testimony 336

_The Milch Case_

Introduction 355
Order Constituting Tribunal 357
Members of Military Tribunal II 359
Prosecution Counsel 359
Defense Counsel 359
I. Indictment 360
II. Arraignment 365
III. Opening Statements 366
A. Opening Statement for the Prosecution 366
B. Opening Statement for the Defense 377
IV. Selections from the Documents and Testimony of Witnesses of
Prosecution and Defense 385
A. Slave Labor 385
1. General Slave Labor Program in Germany 385
2. The Central Planning Board 444
3. The Jaegerstab 524
4. Generalluftzeugmeister 596
B. Medical Experiments 623
C. Curriculum Vitae and Excerpts from the Testimony of
the Defendant Milch 633
V. Closing Statements 690
A. Closing Statement of the Prosecution 690
B. Closing Statement of the Defense 730
VI. Final Statement of the Defendant, 25 March 1947 772
VII. Judgment 773
A. Opinion and Judgment of the United States Military
Tribunal II 773
B. Concurring Opinion by Judge Michael A. Musmanno 797
C. Concurring Opinion by Judge Fitzroy D. Phillips 860
VIII. Petitions 879
A. Extract from Petition for Clemency to Military
Governor of United States Zone of Occupation 879
B. Petition to the Supreme Court of the United States
for Writ of Habeas Corpus 883
IX. Affirmation of Sentence by the Military Governor of the
United States Zone of Occupation 887
X. Order of the United States Supreme Court, 20 October 1947,
Denying Writ of Habeas Corpus 888
Appendix 889
List of Witnesses in Case 2 889
Index of Documents and Testimony 891

VIII. EVIDENCE AND ARGUMENTS ON
IMPORTANT ASPECTS OF THE CASE—Continued

F. Necessity

a. Introduction

The defense generally argued that the medical experiments took place because of military necessity or the national emergency presented by war. The defendant Sievers argued that his participation in various experiments was a necessary part of his participation in a resistance movement in Germany. The defendant Hoven argued that the concentration camp inmates, who were killed by him or with his approval and knowledge, were selected by the camp leadership which had been formed by the political inmates themselves. Hoven also argued that the inmates killed were all dangerous criminals who collaborated voluntarily with the SS, and if they would not have been removed, the political inmates would have been exterminated by these criminals and by the SS. He concluded that it was therefore necessary, in order to prevent greater harm, either to kill these “stool pigeons” personally or to give his approval for their extermination.

On the argument of military necessity and national emergency, extracts from the final plea for the defendant Gebhardt are included on pages 5 to 12. On the general question of necessity, extracts are included from the examination of the defendant Karl Brandt by Judge Sebring on pages 29 to 30, and from the cross-examination of the prosecution’s expert witness, Dr. Andrew C. Ivy on pages 42 to 44. The prosecution discussed the general question of necessity in its opening statement.

The argument of the defendant Sievers that his participation was necessary in connection with resistance to the Nazi leadership appears in his final plea, an extract from which is given on pages 13 to 25. From the evidence supporting the claim of Sievers, extracts from the testimony of defense witness Dr. Friedrich Hielscher are included on pages 30 to 41. The prosecution’s reply to Sievers’ special defense was made, in part, in the prosecution’s closing statement, an extract of which appears on pages 4 to 5. The argument of the defendant Hoven that the killing of concentration camp inmates, of which he was accused, was justifiable homicide appears in his final plea, an extract of which is set forth on pages 25 to 28. The prosecution’s reply to this special defense is set forth in the closing brief against the defendant Hoven, an extract of which will be found on pages 2 to 4.

b. Selections from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING BRIEF AGAINST DEFENDANT HOVEN_

* * * * *

(Hoven) tried to justify the killings [of concentration camp inmates] by stating that these inmates were informers, spies, and stool pigeons of the SS and therefore had to be exterminated. He said that if they had been permitted to carry on with their activities, the illegal camp management would have been wiped out and the criminal inmates in the camp would have gained the upper hand. Hoven’s attempt at justification for the killing of inmates of concentration camps is, of course, no defense. It may well be true that Hoven sympathized and even collaborated with the illegal camp management. It may also be true that some of his victims may have been killed by him on the basis of suggestions put forward by this illegal camp management. But it goes without saying that these political prisoners, who instigated the murder of their opponents, were in no position to judge whether it was really necessary to kill them for the sake of the camp community. They only judged this emergency from their own point of view, i.e., from the point of view of the benefit of themselves. Hoven himself had no judgment at all in this respect and simply made himself the willing and bought tool of a small clique in the camp, who undoubtedly often tried to eliminate not only persons whose activities were considered detrimental to the well-being of their fellow inmates, but also personal opponents and enemies. That Hoven was corrupted by the inmates and paid for his murders is proved by the testimony of several witnesses.

Kogon testified:

“I can only conclude that both motives, the political motive and
the motive of corruption, were active in the case of Dr. Hoven.
_If Dr. Hoven expressed any desire—and he expressed many
desires—then these wishes were always filled._” (_Tr. p.
1213._)

“_He himself expressed many wishes constantly and all possible
advantages were given him by such people whom he had saved._”
(_Tr. p. 1214._)

Kirchheimer testified to the same effect. (_Tr. p. 1346._) The defense witness Pieck painted pictures for Hoven and his family, and the defense witness Horn in his affidavit stated that Hoven was very corrupt. The prisoners knew it and they corrupted him in every possible manner and made him gifts of furniture, underwear, and food. There were periods in which complete workshops were erected for Hoven in which thirty or more inmates were working.

Pieter Schalker testified before the Dutch Bureau for the Investigation of War Crimes in Amsterdam that Hoven played an exceptionally evil role and had innumerable deaths on his conscience owing to completely inadequate medical attention. In later years, when it became obvious that Germany would be defeated, he changed his attitude towards the inmates. (_NO-1063, Pros. Ex. 328._) When Schalker was interrogated by the commissioner of the Tribunal on the motion of defense counsel, he amplified his statement by saying that Hoven stole the food which was furnished for the experimental subjects in Block 46 and also obtained other items such as shoes, toys, and women’s clothing.

The testimony of the affiant Ackermann, who was an inmate in the pathological department under Hoven, proves that Hoven participated in the customary brutal crimes in concentration camps. He said—

“Dr. Hoven stood once together with me at the window of the
pathological section and pointed to a prisoner, not known to me,
who crossed the place where the roll calls were held. Dr. Hoven
said to me: ‘I want to see the skull of this prisoner on my
writing desk by tomorrow evening.’ The prisoner was ordered to
report to the medical section, after the physician had noted
down the number of the prisoner. The corpse was delivered on the
same day to the dissection room. The postmortem examination
showed that the prisoner had been killed by injections. The
skull was prepared as ordered and delivered to Dr. Hoven.”
(_NO-2631, Pros. Ex. 522._)

Hoven also approved the beating of concentration camp inmates. (_NO-2313, Pros. Ex. 523_; _NO-2312, Pros. Ex. 524._) One of these inmates died.

On 20 August 1942, Hoven suggested to the camp commander of Buchenwald that the reporting of deaths of Russian political prisoners be discontinued in order to save paper. He said—

“It is requested that the question should be examined whether it
is necessary to issue reports of the death of political
Russians. According to a direction issued last week, an issue of
only one form was required. This may effect a saving of paper,
but as political Russians are for the greatest number among the
dead prisoners at the present time, more time and paper could be
saved if these death reports were dropped. Notifications of
death could be made as before, as for the Russian prisoners of
war.” (_NO-2148, Pros. Ex. 570._)

The proof has shown that beside the sixty inmates who were admittedly killed by him, Hoven participated in the killing of many other inmates of the Buchenwald concentration camp who suffered from malnutrition and exhaustion. He selected the victims for the transports who were later killed in the Bernburg Euthanasia Station. His defense that all his activities were done only for the benefit of the political inmates in the concentration camp is clearly ridiculous and without foundation.

It is interesting to note that Hoven’s defense that he killed for idealistic motives is the same he used in the proceedings against him in 1944, only then his alleged idealistic motive was “to prevent a scandal in the interest of the SS and the Wehrmacht.” (_NO-2380, Pros. Ex. 527_; see also, _NO-2366, Pros. Ex. 526_.)

* * * * *

_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[1]

* * * * *

In Sievers we have an unresisting member of a so-called resistance movement. He asks the Tribunal to free him from guilt for his bloody crimes on the ground that he was really working as an anti-Nazi resistance agent. Nor was he a latecomer to the resistance movement; according to him, he has been resisting since 1933. Yet in those 14 years, yes to this very day, he has not performed one overt act against the men who ran the system he now professes to have always detested. He joined the Nazi Party as early as 1929 and the SS in 1935. He stayed with Himmler’s gang until the last days of the collapse. He came to Nuernberg in 1946, not to give evidence of the horrible crimes of which he had first-hand knowledge, but to testify in defense of the SS. During his testimony before the International Military Tribunal, he consistently denied any knowledge of, or connection with, crimes committed by the Ahnenerbe of the SS. It was left to the cross-examination of Mr. Elwyn Jones to prove him the murderer and perjurer that he is. Nor did he show any signs of resistance in this trial except to the manifold crimes with which he is charged. Not one new fact did he reveal to this Tribunal, although specifically asked to tell all he knew. If asked today, he will assure one and all that there is not a guilty man in the dock, and least of all himself. But, for purposes of argument, let us concede the truth of his many lies. It does not harm our case. It is not the law that a resistance worker can commit no crime and, least of all, against the people he is supposed to be protecting. It is not the law that an undercover agent, even an FBI agent, can join a gang of murderers, lay the plans with them, execute the killings, share the loot, and go his merry way. Many are the policemen who have been convicted for taking part in crimes they were entrusted to prevent. No, the sad thing is that this collector of living Jews for transformation into skeletons has only one life with which to pay for his many crimes.

* * * * *

c. Selections from the Argumentation of the Defense

_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
GEBHARDT_[2]

* * * * *

_The State Emergency and War Emergency as Legal Excuse_

The evidence proved furthermore that the experiments to test the effectiveness of sulfanilamide were necessary to clarify a question which was not only of decisive importance for the individual soldier and the troops at the front but above and beyond this care for the individual, it was of vital importance for the fighting power of the army, and thus for the whole fighting nation. All efforts to clarify this question by studying the effect of casual wounds failed. Although drugs of the sulfanilamide series—the number of which amounts to approximately 3,000—had been tested for more than 10 years, it was impossible to form an even approximately correct idea of the most valuable remedies. It was impossible to clarify this question in peacetime by the observation of many thousands of people with casual wounds and by circularized inquiries. Nor could a clear answer be found to this question of vital importance to many hundreds of thousands of soldiers by observation of the wounded in field hospitals during the war. In this argumentation it is impossible and also unnecessary to examine details of the problem of wound infection and its control in modern warfare. I may assume that the importance of this question is known to the Tribunal and needs no further proof since this question not only played a part in the German Army but was a matter of special research and measures in the armies all over the world.

In 1942 the conditions in the German Army and in the Medical Services of the Wehrmacht became intensified only insofar as with the beginning of the campaign against the Soviet Union new difficulties presented themselves in this sphere, too. In the campaigns against Poland and France it had been possible to master the wound infections by the usual surgical means, but the difficulties in the war against the USSR increased beyond all measures. It is unnecessary to examine the reasons for this more closely here. It is clear that they resulted from the great distances and poor traffic conditions, but they were also caused by climatic conditions prevailing there.

The fighting power of the German Army was so affected by the heavy casualties that it was impossible to allocate a correspondingly large number of experienced surgeons to the main dressing stations in order to control bacterial wound infection with surgical measures.

During the presentation of evidence the difficult situation in which the German armies found themselves in the winter of 1941-42 on the Moscow front and in the south around Rostov was repeatedly stressed. Here it was demonstrated clearly that the German Wehrmacht, and with it the German people, were involved in a life and death struggle.

The leaders of the German Wehrmacht would have neglected their duty if confronted with these facts, had they not attempted to solve, at any price, the problem as to which chemical preparations were capable of preventing bacterial wound infection and, above all, gas gangrene, and also whether effective means could be found at all. Whatever the answer to this question was, it had to be found as soon as possible in order to avert an imminent danger and to throw light on a question which was important to the individual wounded soldier as well as to the striking power of the whole army. After the failure of all attempts to solve the problem through clinical observation of incidental wounds and other methods, and, in view of the particularly difficult situation and especially of the time factor, there was nothing left but to decide the question through an experiment on human beings. The responsible leaders of the German Wehrmacht did not hesitate to draw the conclusions resulting from this situation, and the head of the German Reich, who was at the same time Commander in Chief of the German Wehrmacht, gave orders for a final solution of this problem by way of large scale experimentation.

Let us examine the legal conclusions to be drawn from this situation as it existed in 1942 for the German Wehrmacht and therefore for the German state—in particular regarding the assumption of an existing national emergency.

The problem of emergency and the specific case of self-defense has been regulated in almost all criminal codes in a way applicable only to individual cases. The individual is granted impunity under certain conditions when “acting in an individual emergency arising for himself or others”. The administration of justice and legal literature, however, recognize that even the commonwealth, the “state,” can find itself in an emergency, and that acts which are meant to and actually do contribute to overcome this emergency may be exempt from punishment.

1. First of all, the question has been raised whether the conception of self-defense, conceived to cover individual cases, can be extended to include a state self-defense, meaning a self-defense for the benefit of the state and the commonwealth. The answer to this question was a unanimous affirmative.

2. The same reasoning, however, as applied to self-defense is also applicable to the conception of an emergency, as embodied, for example, in Section 54 of the German Penal Code and in almost all modern systems of penal law. These provisions, too, were originally conceived to cover individual cases. But, using them as a starting point, legal literature and the administration of justice arrive at a recognition in principle of a national emergency with a corresponding effect. With regard to the definition of the concept of an emergency generally given in the penal laws, the application of these provisions to the state, while justified in itself, can only be effected in principle.

When the idea of an emergency is applied to the state and when the individual is authorized to commit acts for the purpose of eliminating such a national emergency, here, as in the case of the ordinary emergency determined by individual conditions, the objective values must be estimated. The necessary consequences of conceding such actions on the part of the individual must be that not only is he absolved from guilt, but moreover his acts are “justified”. In other words, the so-called national emergency, even though it is recognized only as an analogous application of the ordinary concept of emergency in criminal law, is a legal excuse. But what does “application” in principle to the cases of national emergency mean? Whether a national emergency is “unprovoked” or not, whether, for example, the war waged is a “war of aggression” can obviously be of no importance in this connection. The existence of the emergency only is decisive. The vital interests of the commonwealth and the state are substituted for the limitation of individual interests. Summarizing, we can define the so-called national emergency as an emergency involving the vital interests of the state and the general public which cannot be eliminated in any other way. As far as such emergency authorizes action, not only may a legal excuse be assumed but a true ground for justification exists.

I shall examine later how far an erroneously assumed national emergency, a so-called putative emergency, is possible and is to be considered as a legal excuse. What consequences arise from this legal position in the case of the defendant Karl Gebhardt?

1. As proved by the evidence the general situation in the various theaters of war in the year 1942 was such that it brought about an “actual”, that is, an immediately imminent danger to the vital interests of the state as the belligerent power and to the individuals affected by the war. The conditions on the eastern front in the winter of 1941-42 as they have been repeatedly described during the submission of evidence created a situation which endangered the existence of the state, through the danger of wound infection and the threat to the survival of the wounded and the fighting strength of the troops arising therefrom.

It must be added that the past World War was fought not only with man and material but also with propaganda. In this connection I refer to the statements of the defendant Gebhardt in the witness stand as far as they concern information given to him by the Chief of Office V of the Reich Security Main Office, SS Gruppenfuehrer Nebe. This information shows that at that particular time the enemy tried to undermine the fighting spirit of the German troops with pamphlets describing the organization and material of the German Wehrmacht Medical Service as backward, while on the other hand praising certain remedies of the Allied Forces, for instance penicillin, as “secret miracle weapons”.

2. The assumption of a state of national emergency presupposes that the action forming the subject of the indictment was taken in order to remove the danger. By this is meant the objective purpose of the action, not just the subjective purpose of the individual committing the action. The question, therefore, is whether the sulfanilamide experiments were an objectively adequate means of averting the danger. This, however, does not mean that the preparations really were an adequate means of expertly combatting the danger. According to the evidence there can be no doubt that these assumptions really did exist.

3. Finally, there must not be “any different way” of eliminating the national emergency. One must not misunderstand this requirement. Not every different way, which could be pursued only by corresponding violations, excludes an appeal to national emergency. The requirement mentioned does not mean that the way of salvation pursued must necessarily be the only one possible. Of course, if the different possibilities of salvation constitute evils of different degrees, the lesser one is to be chosen. It must also be assumed that a certain proportion should be kept between the violation and the evil inherent in the danger. In view of the fact, however, that in the present case many tens of thousands of wounded persons were in danger of death, this viewpoint does not present any difficulty here.

According to the evidence there can be no doubt that a better way could not have been chosen. On the contrary, it has been shown that in peacetime as well as in wartime everything was tried without success to clarify the problem of the efficacy of sulfanilamides. And the fact, too, that prisoners were chosen as experimental subjects who had been sentenced to death and were destined for execution, and to whom the prospect of pardon was held out and actually granted cannot be judged in a negative sense. This fact cannot be used as an argument when examining the legal viewpoint, because participation in these experiments meant the only chance for the prisoners to escape imminent execution. In this connection I refer to the explanations I have already given in connection with the so-called probable consent.

_Excuse_

In addition to the general national emergency discussed, the literature of international law recognizes also a special war emergency. According to this, “in a state of self-defense and emergency, even such actions are permitted which violate the laws of warfare and therefore international law.” But in the sense of international law the “military necessity of war” which by itself never justifies the violation of the laws of warfare differs from self-defense and emergency. Emergency and necessity of war, however, are different concepts. The emergency due to which the self-preservation and the self-development of the threatened nation are at stake justifies, according to general principles recognized by the national laws of all civilized countries, the violation of every international standard and thus also of the legal principles of the laws of warfare. When applying the concepts of self-defense and emergency as recognized by criminal and international law, the illegality of violations committed is excluded if the nation found itself in a situation which could not be relieved by any other means.

In this connection the following must be pointed out:

I have already explained that the experimental subjects, on whom
the sulfanilamide experiments forming the subject of this case
were performed, came under German jurisdiction, even if one
holds the opinion that Poland’s case was not one of genuine
“debellatio” but only of “ocupatio bellica”.[3] However,
whatever opinion one might hold with regard to this question,
there can be no doubt that assuming an emergency according to
international law, the performance of the experiments would have
been justified even if at the time the experimental subjects had
still been citizens of an enemy nation. Decisive for the
regulation of the conditions of such persons according to
international law are the “Regulations Respecting the Laws and
Customs of War on Land” annexed to the Hague Convention, dated
18 October 1907. According to the above statements, however,
even a violation of such special conventions, as contained for
instance in the special prohibitions of Article 23, is justified
during a genuine war emergency. The fact that the special
conditions characterizing a real war emergency are existent
invalidates the objection that citizens of another country
should not have been used for the experiments.

_The Evaluation of Conflicting Rights and_
_Interests as Legal Excuse_

According to well-considered opinions, we must start from the premise that the defendants, both in principle and in procedure, are to be tried according to German criminal law. They lived under it during the period in question and were subject thereto. For this reason I wish to approach one more viewpoint which should be considered independently, and in addition to the legal excuses already mentioned, when judging the conduct of the defendants.

For many years the legal provisions for emergency cases have proved inadequate. For a long time an endeavor was made to fill the gaps with theoretical explanations of a general nature, and finally the Reich Supreme Court handed down basic decisions expressly recognizing an “extra legal emergency”. The considerations on which they were based are known as the “objective principle of the evaluation of conflicting rights and interests.” In the legal administration of the Reich Supreme Court and in further discussions this principle, to be sure, is combined with subjective considerations of courses of action taken by the perpetrator in the line of duty. Therefore it is necessary to discuss both considerations, that of evaluating conflicting rights and interests and that of compulsion by duty together, even if we must and shall keep them distinctly separated for the time being.

The consideration of an evaluation of conflicting rights and interests as legal excuse is generally formulated as follows:

“Whoever violates or jeopardizes a legally protected right or
interest of lesser value in order to save thereby a legally
protected right or interest of greater value does not act in
violation of the law.”

The lesser value must yield to the greater one. The act, when regarded from this point of view, is justified, its unlawfulness—and not merely the guilt or the perpetrator—is cancelled out.

This so-called principle of evaluating conflicting rights and interests is first of all a formal principle which establishes the precedence of the more valuable right or interest as such. This formal evaluation principle requires on its part a further material evaluation of the rights or interests comparatively considered. This evaluation again requires the adoption of the law and its purport to the general attitude of a civilization and, finally, to the conception of law itself.

Let us examine the conclusions to be drawn from this legal situation in our case: Agreement and so-called likely agreement, just as well as a national emergency and a war emergency, constitute special legal justifications, the recognition of which allows us to dispense with a recourse to the general principle of evaluating conflicting rights and interests. The latter retains its subsidiary importance. Furthermore, those two special legal justifications refer in their purport to a fair and equitable way of thinking as well as to the proportional importance of various types of evils; thus they themselves include the conception of evaluating conflicting rights and values. For this reason, among others, the following must be explained in detail at this point:

A national emergency and a war emergency were unmistakably in existence in 1942. Every day the lives of thousands of wounded were endangered unless the threatening wound infection could be checked by the application of proper remedies and the elimination of inadequate remedies. The danger was “actual”. Immediate help had to be provided. The “public interest” demanded the experimental clarification of this question. The evidence has shown that the question could not be clarified by experiments on animals or by the observation of incidental wounds.

The last word on this question, however, is not said merely by reference to the public interest. Opposed to the public interest are the individual interests. The saying “necessity knows no law” cannot claim unlimited validity. But just as little can the infringement on individual interests in order to save others be considered as “contrary to good morals”. The evidence has shown that the members of the resistance movement of Camp Ravensbrueck who were condemned to death could only escape imminent execution if they submitted to the experiments which form the subject of this indictment. There is no need to examine here and now whether the experimental subjects did give their consent or whether they presumably would have consented, if, from their personal point of view and in the full knowledge of the situation, they could have made a decision within the meaning of an objective judicial opinion based on probability. What really matters is the question of whether after a just and fair evaluation of the interests of the general public and the real interests of the experimental subjects, the defendant could conclude that, all circumstances considered, the execution of the experiments was justifiable. Without doubt this question can be answered in the affirmative. Quite apart from the interest of the state in the execution of the experiments, participation in the experiments was in the real and well-considered interest of the experimental subjects themselves, since this participation offered the only possibility of saving their lives through an act of mercy.

* * * * *

_The Defendant’s Erroneous Assumption of an Emergency_
(_Putative Emergency_)

I have already mentioned the circumstances which justify the assumption of a national emergency and a war emergency caused by the special conditions prevailing in 1942. If these conditions actually prevailed, the illegality of the act and not only the guilt of the perpetrator would be excluded for reasons previously enumerated. If the defendant had erroneously assumed circumstances which if they really had existed would have justified a national emergency and a war emergency, then, according to the general principles already mentioned, the intent of the defendant and thus his guilt would also be eliminated in this respect. The evidence, especially the defendant’s own statements on the witness stand, leaves no doubt that, when the experiments began in 1942, he had assumed the existence of such circumstances which were indeed the starting point and motive for ordering and carrying out these experiments.

* * * * *

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
SIEVERS_[4]

* * * * *

May I remind you of the exciting part of my case in chief which dealt with Sievers’ participation in the resistance against the National Socialist government and administration. By putting forward his activity in a resistance movement, the defendant Sievers does not endeavor to obtain a mitigation of an eventual condemnation. In my opinion, this activity must under all circumstances result in his acquittal, even though, contrary to expectation the High Tribunal should tend towards the opinion that Sievers had participated in the accused crimes.

In the first place it is my intention to discuss a series of legal questions that have at all times been acknowledged in the criminal law of all civilized nations. It is not by any means the task of the High Tribunal to apply any special article of law, but, from general legal and legal-philosophical principles, to lay down a rule finding and creating a new law to meet a new situation. It need hardly be said that first and foremost I am supporting my own client. But in your verdict, you, your Honors, are not judging only this defendant. Beyond this particular case your verdict has a far more extensive, general, nay, world-wide importance. For it is the first time that a tribunal of such importance is to decide upon the actions of a member of a resistance movement. Consequently, your judgment is a fundamental one and a signpost for our time for many, many other defendants and accused men in this connection who have stood before this Tribunal or will be brought before other courts. Your decision for all time extends to cover thousands and thousands of men who, at some time, may be put in the position of opposing some criminal system of government by similar means as Sievers did. On this our globe there are still autocracies and totalitarian dictatorships and it requires only little foresight to realize that other dictatorships may involve other international entanglements and wars of the most horrible nature. Furthermore, in the future, mankind will again and again be in sore need of courageous men who for the sake of their nation and for the welfare of mankind oppose themselves to such dangerous doings. It is for such champions and for such groups of champions that your verdict will be a criterion and a signpost. You are deciding in advance the future possibilities and the sphere of action of future resistance movements against criminal governments and their chiefs. You are offered the opportunity of checking such movements by your verdict. But you are also able to give them the safety necessary for their dangerous enterprise and the success of their proceedings. How and where would such helpers be found in future if, apart from the immediate peril, they have to reckon with the additional danger of being called to account by the very people for whom they risked their lives? And therefore, your Honors, with your verdict in the Sievers case you take upon you a responsibility before the whole world and for all time to come, a responsibility as is seldom placed upon a tribunal. But on the other hand you can also say with pride that with this judgment you render an immeasurable service to the world in its struggle for peace and justice.

Therefore the reasons for your verdict in the Sievers case are so immensely important, far more important than the trifling Sievers case can be in the universal history of all times. I am forced to detail the particulars of these problems.

It goes without saying that the member of a resistance movement can only refer to his resistance, if this resistance is lawful. This will not always be the case; for, political crime and similar actions committed for political motives are crimes and will remain such. He who removes a political adversary only to take his position or to open the way for his partisans acts unlawfully and is liable to punishment. The situation, however, becomes different if not only a political discussion is interrupted by murder, but where a tyrant whose government is inscribed with bloody letters in the annals of mankind is at last felled to the ground. In this case the perpetrator is supported by an acknowledged excuse. This excuse is self-defense.

According to the German Penal Code, Article 53, an action is not punishable if it is committed in self-defense. And self-defense is such defense as is necessary to ward off from oneself or another person an imminent unlawful attack.

These principles are, however, not only German legal stipulations. They are legal values of all nations and all times. To a large extent they tally with human sentiments and are termed “the great law of defense.” They are already found in Roman law in the formulation “vim vi expellere [repellere] licet”—force may be driven out by force—and have been enthusiastically taken over by English common law and by American law, as stated by Wharton, “Criminal Law”, paragraph 613. They authorize every individual to ward off injury from himself or another person with all necessary means at his command. From this point of view too the struggle against a criminal government threatening the peace of the world, preparing aggressive wars, ready without any purpose or need to plunge the whole world into immeasurable misery from sheer striving for power, from presumption and conceit; struggle and resistance against such a government and such guidance are lawful and permissible, no matter by what means they may be carried on. Since the end of the war even, the opinion has been maintained more and more that such a struggle is not only lawful and permissible but is even the duty of every individual. Is not the collective guilt of the whole German nation substantiated by the charge that it witnessed the doings of the Nazi government without interfering at least with a secretly clenched fist in its pocket? Murder and manslaughter, bodily injury and restriction of liberty inflicted upon the potentates and responsible men of such a system are acts of self-defense for the benefit of peace and mankind. They are lawful and exempt from punishment; they are a duty if there is no help possible in any other way.

From times immemorial this question concerning the lawfulness and duty of committing political murder has engaged not only lawyers but also a large number of poets and philosophers. Friedrich von Schiller justified the murder committed on Gessler as the last desperate attempt to escape slavery. Thus the juridical vindication of murdering a criminal tyrant is paralleled by its high moral estimation.

But it may happen that not only the real assailants come to grief. He who has to ward off an attack may be forced to implicate a third person hitherto not involved. This case too is provided for in the German Penal Code and is termed “necessity”. The regulation of Article 54 runs as follows: “No punishable act has been committed when the act—self-defense apart—was committed in an emergency, which could be met in no other way, to escape a present danger to the life or body of the perpetrator or a relative of his.”

The legal codes of all nations and all ages have been compelled to face the problem of the conflict between two legal values which can only be solved by hurting or even annihilating one of the two. Justice cannot insist with utter consistency upon the individual respecting foreign rights and sacrificing his own at all costs and under any circumstances. A Frenchman says to this question: “Cette théorie est admirable pour des saints et pour des héros, mais elle n’est point faite pour la vulgaire humanité”—“This theory is admirable for saints and heroes, but it is not for common humanity”—[Pradier—Fodéré, vol. I, page 367, Traité du droit international public européen et américain.] “Quod non est licitum in lege, necessitas facit licitum”—“What is not permitted by law, necessity makes permissible”—[says the Roman law], and the French lawyer Rossi says: “L’acte ne peut être excusable lorsque l’agent cède à l’instinct de sa propre conservation, lorsqu’il se trouve en présence d’un peril imminent, lorsqu’il s’agit de la vie.”—“The act can be excused only when the perpetrator yields to the instinct of self-preservation, when he finds himself faced with imminent danger, when life itself is at stake.”—An old German legal proverb runs: “Necessity knows no law.” Last but not least, American law deals with this problem under the name “necessity” (_Wharton, “Criminal Law,” par. 642_), a literal translation of the German expression “Not”. So by virtue of necessity a shipwrecked sailor may push his fellow-sufferer from the board which is too small to save both of them. If applied to resistance movements against criminal governments, these principles mean that third persons hitherto unconcerned may also be involved, if there is no other alternative, if “Not”, “necessitas”, “necessity” requires it peremptorily and unavoidably.

You, your Honors, are called upon to bring the principles of “self-defense” and of “necessity”, “this great law of defense” to their common denominator, to apply them to the Sievers case and thus insert them into the unwritten rules of the international relations of public and political law. The Anglo-Saxon legal way of thinking and the principles of natural law will give you valuable support in forming the verdict.

Now I can turn to the specific case of Sievers.

In order to judge his actions the following questions are of a decisive importance: Was there a German resistance movement at all? Did the Hielscher group belong to this resistance movement? Was this group to be taken seriously and what were its aims? Was Sievers a member of this group and what were his tasks? What was his attitude in performing these tasks? Were there also other possibilities for him? It has frequently been maintained that there was no German resistance movement. But _the German resistance existed_.

I must, however, confess that the question “Where was this resistance?” readily suggests itself to such people as are not acquainted with the internal conditions of Germany, above all during the war. I must also grant the fact that scarcely more than Stauffenberg’s plot with its staggering consequences came before the public.

He who puts such a question completely misjudges the conditions under which the whole resistance movement had to work against the Nazi Government. He forgets that up to the fatal date of 20 July 1944, he had also no idea of the group round Stauffenberg. I am therefore all the more forced to give a concise exposition of the situation which in the Third Reich everybody opposing the Nazi Government had to face.

From the very beginning it was the aim of the authoritarian government to get hold of every German man, every German woman, all children, and old men in order to bring them up in the spirit of the new method of government. The totalitarian striving for power did not stop short at personal freedom. It removed professional and economic organizations, cultural and social institutions, some of which were reestablished in another form, subject to the control of the Nazi Government.

It was against this state of things that the struggle set in from the very beginning. Nothing would be more wrong than to believe that this struggle could be waged in the open street with large quantities of propaganda material, display of physical force, with fire arms, bombs, war, and rumors of war. Even in the trade unions, the most consistent and resolute adversaries of the new government in 1933, such a method was not possible. This government kept a tight rein over the whole public apparatus controlling in an increasing degree the private spheres through the organizations of the SD, Gestapo, etc. The ambiguous stipulations of the law against malicious acts or insults to the state and party (Heimtueckegesetz) made possible the imprisonment of people even for accidental deprecatory remarks. Political discrimination and the constant danger of being sent to a concentration camp were the effects of many innocent remarks. No newspaper could have been found to agitate against the oppressors. But if handbills were secretly distributed the contents of which defamed the Nazi government, the whole apparatus of the police, Gestapo, SD, etc., was set in motion. The possession of weapons was considered circumstantial evidence of treasonable enterprises and meant capital punishment for the imprudent. It must be added that there was a widely extended spy system sticking to everybody’s heels. One had even to guard oneself against one’s nearest relations and children.

These few words concerning the internal situation of Germany were necessary as an answer to the absurd question put in Stockholm to the witness Hielscher: “Why did you not speak in the open market place [publicly]?” (_Tr. p. 5935._)

The most obvious kind of opposition was offered by the two great Christian churches. How much and how often were the antichrist and his false prophets not preached against, how many clergymen of all confessions were sent to prisons, penitentiaries, concentration camps, nay, to death? It is true, the churches could venture forth more openly than other people. For they did not intend to participate in a _forcible_ removal of the system, in the killing of its leaders and representatives, in the fight with arms. But the nonecclesiastical resistance groups had realized that the Nazi dictatorship could not be overthrown without violence; they were not subject to the political-philosophical impediments and restrictions of the churches, they could not throw off the mask until the day of action had dawned. Up to that time they were condemned to be silent, they had to camouflage, acting on the old principle of all conspirators: “Never speak of your aim, but always think of it!” If they had forgotten this principle, sooner or later unquestioningly they would have been betrayed by a spy and liquidated by the Gestapo. They would never have got as far as action. Did not the group round Stauffenberg act in this way too? Who knew of its existence before the bomb burst in Hitler’s headquarters on 20 July 1944? The same was the case with all the other resistance groups which unfortunately no longer had the possibility of acting and some of which were traced and secretly killed in spite of this.

The fact that all of them existed is proved, however, by the small number of publications: the pamphlets of Emil Henk, of Franklin L. Ford and other authors, and Neuhaeusler’s book, “Cross and Swastika”.

But downright classical witnesses are the numerous bloody victims whom the People’s Court of Justice [Volksgerichtshof] and the Gestapo had sent to the concentration camps and to death.

One of these groups was the group around Hielscher, a member of which was the defendant Sievers.

_There was a Hielscher group, it existed, it acted._ Hielscher himself is an unimpeachable witness of this. In connection with 20 July 1944, he was imprisoned for three months and was to be hanged. Hielscher’s illegal activity is sworn to by many other no less trustworthy witnesses. As the first of them I mention the political emigrant Dr. Borkenau, who had been working against National Socialism at least since 1928. He had known Hielscher since 1928. He speaks of his hostility to National Socialism, of a “sharp attitude”. At that time he frequently negotiated and conspired with Hielscher, who set forth the methods of his fight. During his emigration, Dr. Borkenau watched Hielscher’s activity from abroad and again and again he heard: “Hielscher keeps on fighting”. If we are told so by an emigrant, we may well believe it. Another witness who never lost connection with Hielscher was Dr. Topf, who himself was an active member of the resistance movement. He too described Hielscher as a violent antagonist of National Socialism, working and struggling unswervingly. I refer to the many affidavits which I presented in this connection.

It does not speak against Hielscher’s oppositional activity that he did not stand out more in public. For him too, camouflaging up to the moment of decision was an imperative requirement, and Dr. Borkenau calls it a downright masterpiece that he so eminently succeeded in doing so.

_Sievers was a member of the Hielscher group_

There cannot be the least doubt of this fact. Apart from all the testimony, the whole personality of my client excluded any Nazi attitude. His nature and his development necessarily made him a decisive adversary of Hitler’s system of oppression, terror, and murder. Both his origin and the interests of his youth brought him into contact with people who kept aloof as much as possible from the Nazi way of thinking. He was the son of a director of ecclesiastical music; he pursued historical and religious studies. His nature led him to the Boy Scouts, in short to such interests as National Socialism calumniated with all its powers of ridicule and combated violently with stubborn dislike. All those persons who either testified or in affidavits gave evidence about his character describe him as follows: an upright man with lofty ideals of deeply rooted humanity and a strong sense of law and justice. If you combine this picture of Sievers painted by notorious anti-Fascists with all the authenticated aid that Sievers bestowed on victims of Nazism, it is only a small step to the conviction that Sievers was also a member of a resistance movement.

Perhaps the prosecution may say: “I do not believe all these stories, for both Hielscher and Sievers did not achieve anything.”

That would wrong Sievers to a high degree, your Honors! Other resistance groups too had the misfortune that they had not more opportunity to act. The witness Hielscher exposed very clearly the reasons why a standstill was inevitable after the failure of the plot on 20 July 1944. As Hielscher and his associates could no longer depend upon the army, they were compelled to start again from the very beginning.

What were the intentions and the mission of the defendant Sievers within the Hielscher group? Hielscher himself answers that. Sievers’ tasks were of two kinds: (1) Gathering news from the immediate proximity of Himmler as basis for the disposal of the resistance forces with regard to place, time, and kind of action. (2) Sievers was not only a spy and a scout; at the moment of action he was destined and ready to do away with Himmler. These two tasks require a double legal examination: Were they in themselves permissible, lawful, or even a duty? The answer to this question is to be found in the principles which I evolved in the idea of self-defense in the sphere of political struggle. What measures was he allowed to take? To what extent could he venture to advance into the domain of criminality? To what extent could he involve uninitiated third persons in his plans, even actual victims of Nazism? The rules of “necessity” lead the way for judging and solving this problem.

In taking up the first question I can be relatively brief. After all we know today, it is an irrefutable fact that Hitler and his accomplices terrorized the German Nation and the whole world in a criminal way and with criminal means, that from the beginning they were an immediate peril to peace and all civilization and that finally the worst apprehensions turned to ghastly reality. Therefore the first prerequisite for the defense of “necessity” is beyond all doubt a present illegal attack on the highest goods of mankind. To put it in the words of the German Penal Code that was the “necessity” (“not”) which was to be warded off.

But we also know that this defense was not to be accomplished with the normal means of a democratic parliamentary system. I described the truly diabolical organization by which it had been rendered impossible to make use of these means. Thence follows that the removal of Hitler and his accomplices was the only possible expedient to break and smash this system. Less hard and violent means were not available.

As a matter of course it follows that Hielscher’s plan to do away with Himmler had become legal and compulsory for those in the position to execute it. After the evidence of Hielscher and other trustworthy witnesses, it cannot be denied that Sievers had been charged with this task.

If it was justified to do away with Himmler, the accompanying and preparing scouting-activity was justified too.

Before answering the question to what extent Sievers could involve third persons, I have to sketch in a few lines the tactics of Hielscher and the position of Sievers.

It was not in vain that Hielscher himself gave full particulars on this question. We also heard other witnesses, Dr. Borkenau, Dr. Topf. Sievers clearly outlined his tasks. All this evidence is in such unanimous agreement that no doubt of its truth could arise.