Chapter XXXI: Conclusion (1)

Military Tribunal I finds and adjudges that the defendant Fritz Fischer is guilty under counts two, three, and four of the indictment.

[signed] WALTER B. BEALS
PRESIDING JUDGE.
HAROLD L. SEBRING
JUDGE.
JOHNSON T. CRAWFORD
JUDGE.

SENTENCES

PRESIDING JUDGE BEALS: Military Tribunal I has convened this
morning for the purpose of imposing sentences upon the
defendants who have been on trial before this Tribunal and who
have been adjudged guilty by the Tribunal.

“KARL BRANDT, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Karl Brandt, to death by hanging.

“SIEGFRIED HANDLOSER, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Siegfried Handloser, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“OSKAR SCHROEDER, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Oskar Schroeder, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“KARL GENZKEN, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Karl Genzken, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“KARL GEBHARDT, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Karl Gebhardt, to death by hanging.

“RUDOLF BRANDT, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Rudolf Brandt, to death by hanging.

“JOACHIM MRUGOWSKY, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Joachim Mrugowsky, to death by hanging.

“HELMUT POPPENDICK, Military Tribunal I has found and adjudged you guilty of membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Helmut Poppendick, to imprisonment for a term of ten years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“WOLFRAM SIEVERS, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Wolfram Sievers, to death by hanging.

“GERHARD ROSE, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Gerhard Rose, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“VIKTOR BRACK, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Viktor Brack, to death by hanging.

“HERMANN BECKER-FREYSENG, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Hermann Becker-Freyseng, to imprisonment for a term of twenty years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“WALDEMAR HOVEN, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Waldemar Hoven, to death by hanging.

“WILHELM BEIGLBOECK, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Wilhelm Beiglboeck, to imprisonment for a term of fifteen years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“HERTA OBERHEUSER, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Herta Oberheuser, to imprisonment for a term of twenty years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

“FRITZ FISCHER, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Fritz Fischer, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.”

-----

[56] A more correct translation is typhus, see vol. I, p. 13.

[57] Indictment originally read “January 1943” but was amended by a motion filed with the Secretary General. See Arraignment, vol. I, p. 22.

[58] Trial of the Major War Criminals, vol. I, p. 269, Nuernberg, 1947.

XIII. PETITIONS

a. Introduction

Article XV of Ordinance No. 7 of Military Government for Germany (US) provides that the judgment of the Tribunal as to the guilt or innocence of any defendant shall be final and not subject to review. However, Article XVII provides that the Military Governor has the power to mitigate, reduce, or otherwise alter the sentence imposed by the Tribunal, but may not increase the severity thereof. The petitions on behalf of defendants seeking a revision of the sentences have ordinarily been called clemency pleas.

All 16 defendants found guilty by the Tribunal in case No. I petitioned for clemency to the Military Governor of the United States Zone of Occupation in accordance with Article XVII of Ordinance No. 7. Each of the condemned defendants, with the exception of the defendant Poppendick, also petitioned to the Supreme Court of the United States for a writ of habeas corpus and for a writ of prohibition against the proceeding or an order nullifying the trial and setting the defendants at liberty. Moreover, all defendants, with the exception of the defendant Becker-Freyseng, filed appeals of some kind with the Secretary of War. From these various types of petitions, six are set forth below in whole or in part as follows: petition of appeal to the Secretary of War for the defendant Karl Brandt, page 302; petition for a writ of habeas corpus and a writ of prohibition to the Supreme Court of the United States by the defendant Rose, pp. 303 to 306; extracts from the petition for a writ of habeas corpus and a writ of prohibition to the Supreme Court of the United States by the defendant Schroeder, pp. 307 to 308; petition for review to the Military Governor of the United States Zone of Occupation for the defendant Genzken, pp. 309 to 318; clemency plea to the Military Governor of the United States Zone of Occupation for the defendant Rudolf Brandt, pp. 319 to 321; and clemency plea to the Military Governor of the United States Zone of Occupation for the defendant Poppendick, pp. 322 to 326.

b. Selections from the Petitions to the Military Governor, the
Supreme Court of the United States, and to the
Judge Advocate General

_FOR THE DEFENDANT KARL BRANDT_
Nuernberg, 4 September 1947.

The Secretary of War, Judge Advocate General, War Department, Washington, D.C., United States of America. Professor Dr. Karl BRANDT, Petitioner, Defense Counsel Dr. R. Servatius, attorney-at-law, Cologne _vs._ United States of America Petition of Appeal

No.——

As defense counsel of the defendant Professor Dr. med. Karl Brandt, I herewith lodge an appeal against the verdict of the Military Tribunal No. I at Nuernberg in Case I, of 19 and 20 August 1947, by which the defendant was sentenced to death. For justification of my appeal against the indictment on which the verdict is based, as well as the verdict itself, I refer to the following documents, copies of which are attached:

(_a_) Application for review, dated 28 August 1947, addressed to
the Chief of Military Government for the American Zone of
Occupation in Germany.

(_b_) Application for writ of habeas corpus, dated 28 August
1947, addressed to the Supreme Court of the United States of
America.

It follows from these attached documents that the defendant Karl Brandt was unlawfully deprived of the possibility to lodge an appeal before a Military Tribunal consisting of medical experts.

A re-trial before a court of higher order is necessary in order to re-examine the errors committed by the Tribunal in ascertaining the facts of the case and applying the law.

I request:

(_a_) that the verdict of the Military Tribunal, dated 20 August
1947, be annulled.

(_b_) that a court of appeal be formed for a new trial of the
case.

[Signature] DR. R. SERVATIUS
_Attorney-at-law_.

_FOR THE DEFENDANT ROSE_ Prof. Dr. med. Gerhard Rose Nuernberg, 4 September 1947 POW A/938984 Palace of Justice, Nuernberg, Germany

Defense Counsel: Dr. Heinz [Hans] Fritz
Attorney-at-law,
Bavariaring 14,
Munich, Germany

To the Supreme Court of the United States of America Washington, D.C.

Prof. Dr. med. Gerhard Rose, Petitioner _vs._ United States of America

Petition for Writ of Habeas Corpus and Petition for Writ of Prohibition

No.——

I, the undersigned Prof. Dr. Gerhard Rose, was sentenced, in the verdict of the American Military Tribunal I in Nuernberg, Germany, that was announced on 19 and 20 August 1947, of Case I, United States of America _vs._ Karl Brandt and others, for war crimes and crimes against humanity, as defined in Control Council Law No. 10 of 20 Dec 1945, to life imprisonment.

I pray:

(1) that a writ of habeas corpus be issued by this Court,
directed to Lieutenant General Lucius D. Clay, Commanding
General, United States Army Forces, Germany, commanding him to
produce the body of the petitioner before your Court or some
member thereof at a time and place therein to be specified, then
and there to receive and to do what your honorable Court shall
order concerning his confinement and trial as an accused war
criminal and that he be ordered returned to the status of, and
internment as a prisoner of war in conformity with the
provisions of Article 9 of the Geneva Convention of July 27,
1929, relative to the treatment of prisoners of war and of
paragraph 82 of the Rules of Land Warfare [U. S. Field Manual
27-10], and

(2) that a writ of prohibition be issued by this Court
prohibiting the respondent from proceeding with the trial and
that the petitioner be discharged from the offenses and
confinement aforesaid,

(3) that the costs of the court shall not be levied, because I
am a prisoner of war and my property has been confiscated by the
Control Council for Germany.

As reasons for the above requests I offer the following:

The sentence imposed on me not only violates valid international
law, but also legal principles whose observance by all the
courts of the United States is guaranteed by the Constitution of
the United States of America.

The basic principle that has been violated is that no one may be
deprived of the judge [justice] provided for by law and that
each defendant must be granted a regular trial.

The following violations are charged in particular:

The sentence was passed in violation of Article 63 of the Geneva
Convention of 1929. I am a medical officer and was Generalarzt
in the Reserve, which is equivalent to a brigadier general in
the Medical Corps in the American Army. In May 1941 I was in the
Luftwaffe hospital at Kitzbuehl in Austria and became a prisoner
of war. Shortly afterwards I was flown to England and taken to
Camp Latimer (Bucks), known as POW Camp 7. There I was
registered as a prisoner of war in the middle of June 1945 and
received the POW number A 938984. I was informed that I was a
British prisoner of war. I am still a prisoner of war today,
because I was neither discharged _de facto_ nor was I ever given
discharge papers or shown discharge papers that had been filled
out. As a prisoner of war I have a right to have my case tried
by a court martial, as would be correct in case an Allied
medical officer of equal rank were to be indicted on the same
charges. This Court must not only be an officers’ court composed
of judges holding corresponding rank, but it must also be a
professional court, because it must be composed of medical
officers. Since the American Military Tribunal I is not such a
court, it was, for example, not in a position to correctly judge
my activity as scientific consultant medical officer in
relationship to that of a commanding officer.

Article 63 of the Geneva Convention of 1929 purposely makes no
differentiation between crimes that a prisoner of war commits
during his prisoner of war captivity and those which he
committed before he became a prisoner of war. In accordance with
the purpose and spirit of the Geneva Convention of 1929, the
prisoners of war are to be protected by this provision from
being brought up before a special court or from any limitation
of their legal rights.

(2) There is a violation of Article 64 of the Geneva Convention
because the legal remedies that would be available to an Allied
medical officer in a corresponding case cannot be used in the
case of the sentence that has been imposed upon me, because
Article 15 of Ordinance No. 7 of the American Military
Government in Germany provides that the verdicts of the Military
Tribunals are final and incontestable.

(3) There is a violation of Article 60 of the Geneva Convention,
because Switzerland was not informed, as the protecting power
for prisoners of war, of the criminal proceedings pending
against me.

(4) The sentence imposed on me violates generally recognized
legal principles. It is based on the Control Council Law No. 10,
dated 20 December 1945, and the _ex post facto_ definitions
contained therein. The sentence has inflicted punishment on me
for crimes against humanity, that is, on the basis of an act
which was for the first time declared punishable by Control
Council Law No. 10.

The suspension of this universally recognized legal principle by
a new law cannot change justice itself. The validity of this
special law must be tested by the court.

(5) The sentence violates the basic principle _nulla poena sine
culpa_, because it punished me according to Article II, 2_c_ and
_d_ of the Control Council Law. These parts of the Control
Council Laws allow punishment for mere consent to an act and for
a merely objective “connection” with the planning or execution
of such act. These provisions represent new substantive law that
has been created _ex post facto_.

(6) During the trial I was limited in my defense in an
inadmissible way. My defense counsel, Attorney Dr. Fritz, twice
requested, in the prescribed manner, that Prof. Dr. Blanc, a
French citizen and director of the Pasteur Institute in
Casablanca, Morocco, be summoned as an expert witness in the
examination of the research work of Prof. Haagen. The medical
research work of Prof. Haagen concerns such difficult medical
problems that it cannot, in my opinion, be judged by judges who
lack medical training, without the expert testimony of a capable
specialist. However, the Court did not approve the requests.
This is in my opinion the only reason that I was found guilty in
connection with the research work of Haagen.

(7) It is further asserted that the principle of oral
proceedings was violated. In the final stages of the trial the
Court ordered a partly written procedure. Although the main
trial had lasted many months and there was an extremely abundant
amount of material to discuss, from a factual as well as a legal
standpoint, my defense counsel was only allowed one hour for his
closing speech. As for the remaining arguments he was advised to
present a closing brief. In this way the protection of publicity
was denied and the guarantee removed that the Court would really
take cognizance of these written statements.

It was not possible for me to receive information concerning
these written statements of my co-defendants in time to take
action thereon.

The contents of the closing brief which my defense counsel
submitted, and the contents of his rebuttal to the closing brief
submitted by the prosecutor against me have obviously not been
considered in the findings of the Court, although the Court
described the closing brief which it demanded as the most
important part of the defense. The English translations of the
closing brief and rebuttal to the closing brief of the
prosecution arrived so late that it seems impossible that the
Court could have taken note of the contents before writing the
verdict.

Several closing briefs which had been submitted by the defense
counsels of my co-defendants were not even available at the time
when the verdict was read.

I assume that the Court could not peruse the rebuttal of my
defense counsels to the closing brief of the prosecution before
writing the verdict, because the verdict, insofar as it pertains
to my case, contains several obviously false statements of facts
and furthermore does not even analyze these statements.

(8) The verdict does not have, according to the provisions of
Military Government Ordinance No. 7, sufficient reasons to back
it up. For instance, it is impossible to determine whether the
Court investigated the possibility of duress that would preclude
punishment.

Insofar as incompetency of the American Military Tribunal No. I is asserted in my case, I point to the fact that it was not possible for me to object earlier on account of Article II _e_ of Ordinance No. 7.

I reserve the right to submit further statements and evidence later.

[Signature] DR. GERHARD ROSE.

_FOR THE DEFENDANT SCHROEDER_

To the Supreme Court of the United States of America Washington through the office of the General Secretary of the U. S. Military Tribunal I Nuernberg.

Oskar Schroeder, Petitioner _vs._ The United States of America

Oskar Schroeder, former Generaloberstabsarzt (Lieutenant
General) of the Luftwaffe (German Air Force) at present in the
prison of the Court in Nuernberg, Germany.

Counsel for the defendant: Dr. Hanns Marx at present at the
Military Tribunal I Nuernberg, Roonstrasse 15.

_Writ of Habeas Corpus and_

_Writ of Prohibition_

* * * * *

Here too, the Court found that I am guilty merely because of the fact that contrary to duty I did not supervise my subordinates.

Finally the judgment found me guilty with regard to the responsibility for gas experiments. Here the judgment states:

“A certain Oberarzt Wimmer, a staff physician of the Luftwaffe
worked with Hirt on the gas experiments throughout the period.

“We discussed the duty which rests upon a commanding officer to
take appropriate measures to control his subordinates, in
dealing with the case of Handloser. We shall not repeat what we
said there. Had Schroeder adopted the measures which the law of
war imposes upon one in position of command to prevent the
actions of his subordinates amounting to violations of the law
of war, the deaths of the non-German nationals involved in the
gas experiments might well have been prevented.”

* * * * *

III

A further infringement against the habeas corpus is the fact that while I have been found guilty as being responsible for the Lost experiments, although I have never been indicted on this count.

The verdict of the Military Tribunal I states on page 11 the names of those defendants who have been accused of having borne special responsibility for the Lost (mustard) gas experiments. My name does not appear on that list.

On page 187 of the verdict, the Court describes the importance that this enumeration of defendants has in relation to the various individual counts of the indictment. It says:

“In preparing counts II and III of the indictment, the
prosecution elected to frame its pleadings in such a manner
[page 7 of the original] as to charge all defendants with the
commission of war crimes and crimes against humanity, generally,
and at the same time to name in each subparagraph dealing with
medical experiments only those defendants particularly charged
with responsibility for each particular item.”

The Court goes on to say:

“In our view this constituted in effect, a bill of particulars
and was, in essence, a declaration to the defendants upon which
they were entitled to rely in preparing their defenses, that
only such persons as were actually named in the designated
experiments would be called upon to defend against the specific
items.”

As the Court repeatedly gave evidence during the course of the proceedings that it adhered to this view I did not defend myself, did not need to defend myself and could not defend myself against the accusation that I had participated in the Lost experiments.

Although the Court finds on page 187 of the verdict:

“We think it would be manifestly unfair to the defendant to find
him guilty of an offense with which the indictment affirmatively
indicated he was not charged,”

it has still found me guilty because of responsibility for the Lost experiment, so that in view of the Court’s own statements as contained in the verdict, my sentence constitutes, insofar as it concerns this matter, a gross injustice.

I believe that the sentence of the Military Tribunal I violates a principle insofar as each defendant must be told clearly what crime he has been charged with, and that he must have opportunity to defend himself against these accusations.

It is this principle that is being violated in the findings of the Court against me. In my opinion, it infringes thus the principle of legal heading laid down in the habeas corpus. It is therefore obviously unjust, according to the wording of the verdict itself.

* * * * *

_FOR THE DEFENDANT GENZKEN_
Dr. R. Merkel
Defense Counsel of Defendant Dr. Karl Genzken
Nuernberg, 2 September 1947.

To the American Military Governor for Germany General Lucius D. Clay _via_ the Secretary General of the Military Tribunal I Nuernberg.

_Concerning_: Confirmation of the sentence of Military Tribunal I,
Nuernberg, of 19 August 1947.

Karl Genzken, defendant in Case I, defended by Attorney-at-Law Dr. R. Merkel, Nuernberg, by verdict of Military Tribunal I of 19 August 1947 was found guilty of war crimes, crimes against humanity, and membership in the SS—counts two, three, and four of the indictment—and was sentenced to life imprisonment.

I request that the sentence may not be confirmed, since the defendant is innocent of the punishable participation in the typhus experiments in Buchenwald with which he is charged.

The verdict of Military Tribunal I, Nuernberg of 19-20 August 1947 decided that Genzken in his official position was responsible for, cooperated in, and promoted the typhus experiments which were carried out on non-Germans against their will, and in the course of which, and as a result of which, cases of death occurred.

On the basis of the verdict it is certain that the defendant himself did not actively participate in the typhus experiments; he never entered the Buchenwald concentration camp during the war and never saw the typhus experimental station in Block 46.

The verdict is based on the presupposition—

(1) that Genzken before 1 September 1943—as superior of Mrugowsky, the Chief of the Hygiene Institute, and of Ding in his capacity as an assistant in this Institute—has had the command and thus the official supervision over the experiments in the typhus experimental station in Block 46 of the Buchenwald concentration camp,

(2) that Genzken before 1 September 1943 was acquainted with the kind and scope of the activity of Mrugowsky and Ding, who were supposedly subordinated to him in the field of typhus research, and

(3) that he nevertheless failed to make sure that this research work was carried out within legally permissible limits.

These statements of the verdict are not correct, since they do not take into account in any way the actual facts which emerged on the basis of the extensive evidence submitted by the prosecution and defense.

I
_Genzken had no command and no official supervision over the
typhus experiments in Block 46_

The research for a new typhus vaccine for the Waffen SS was purely scientific research in the medical field. In contrast to the Chiefs of the Medical Services of the three Wehrmacht branches (Army, Air Corps, Navy) scientific research and planning did not belong to the tasks delegated to the Chief of the Medical Service of the Waffen SS. The official agency in charge of scientific research and planning for all the organizations of the SS and the police was rather exclusively Reich Physician SS and Police Professor Dr. Grawitz (pages 4-6 of closing brief of the defense).

Exhibit No. 39 of the prosecution proves that Grawitz in 1942 without success requested funds for the intended establishment of several research institutes. However, in view of the imminent pressing danger of typhus, Grawitz, at the order of Himmler, gave the command to establish a typhus experimental station in connection with and sharing the funds appropriated for Block 46 of the Buchenwald concentration camp and in December 1941 he appointed Dr. Ding of the Hygiene Institute of the Waffen SS head of Block 46. In reference to this Mrugowsky states: “Himmler did not order me to take charge of these experiments, but at the suggestion of Grawitz assigned these duties to Dr. Ding.” (_p. 5067 of the English transcript._) In the affidavit of S. Dumont, we read: “Mrugowsky told me that Grawitz will transmit Himmler’s order direct to Ding” (_Document Mrugowsky 38, Exhibit 13, p. 50 Document book Mrugowsky I_). Finally Blumenreuther declares in his affidavit of 3 February 1947 (_Document Mrugowsky No. 26, Exhibit 6, p. 170 Document Book Mrugowsky I_) as follows: “In 1942 Grawitz brought about Himmler’s order to establish in the Buchenwald concentration camp an experimental station for typhus research and appointed Dr. Ding to take charge of this experimental station.” Thus Ding left the Hygiene Institute, when his research work began, and from this time on he was no longer a subordinate of Genzken, but as chief of the research department in Block 46 was directly, immediately, and exclusively subordinate to Grawitz. As oldest hygienic expert, Grawitz consulted his consulting hygienist Mrugowsky in the course of his researches concerned with typhus. This latter called himself “Reich Physician SS and Leading Police Hygienist” in his report of 5 May 1942 which was mentioned in the verdict (_Mrugowsky, Exhibit 20, p._ _86, Doc. Book Mrug. I_). As a result of the shortage of hygienists, Mrugowsky, in his capacity as head of the only Hygiene Institute on the home front, was available also to the Reich Physician for his medical duties concerned with all the branches of the SS and for his scientific research tasks. As head of the Hygiene Institute and as head of Office XVI concerned with questions of group hygiene of the Waffen SS, Mrugowsky was subordinate to Genzken, not however in his capacity as hygienic consultant to the Reich Physician. In connection with these problems, to which belonged also the typhus vaccine research, Mrugowsky was subordinate only to Reich Physician SS Grawitz and not to Genzken. If, as the verdict presupposes, the relationship of giving orders had really been the following: Himmler-Grawitz-Genzken-Mrugowsky-Ding, then Genzken would have had to take orders from Grawitz and would have been called for conferences with Grawitz. This has not been established by the prosecution.

Through the examination of witnesses by prosecution and defense, it was established that there were two separate institutions in Buchenwald: the typhus research institute from December 1941 in Block 46 and the typhus vaccine manufacturing station from the fall of 1943 in Block 50 (_see page 35, Closing Brief of the Defense and Exhibit Genzken Exh. No. 5_). The manufacturing station in Block 50, and Ding as its head, would have been subordinate to Dr. Genzken as such if the manufacture of the new SS typhus vaccine had been started before 1 September 1943. However, this was definitely not the case; it was still in a preparatory state (_see page 46, closing brief of the defense_). If on page 96 (German text) of the verdict it is furthermore stated that the official channels were arranged in this manner: _Himmler-Grawitz-Genzken-Mrugowsky-Ding_, then this statement also is in obvious contradiction to the facts established in a clear and conclusive manner by the examination of witnesses.

Because, as far as the channels of command for the typhus experimental station are concerned, the following points prove that these channels of command ran _Himmler-Grawitz-Ding_ for Block 46:

(1) Dr. Morgen states in his affidavit Mrugowsky Exh. 107 (_Doc. Mrug. 114, Doc. Book Mrug. Supplement II, p. 54_), that Grawitz gave written and direct order to Ding to carry out the typhus research without Genzken’s participation. Ding showed Morgen the written order from Grawitz.

(2) The letterhead which Ding used before spring 1943, as head of the experimental station for typhus and virus research, read as follows: “Reich Fuehrer SS—Typhus-Experimental Station, Buchenwald” (_see Doc. Genzken No. 2, Genzken Exh. 8_).

(3) The prosecution witness Kogon confirms the fact that all reports went through Mrugowsky directly to Grawitz and not by way of Genzken.

(4) Genzken and Mrugowsky both testify under oath that Himmler and Grawitz gave the order for the establishment of the experimental station to Ding directly.

(5) In Exhibit 283 of the prosecution, Ding states “that Grawitz, in agreement with the leading physician of the concentration camp Dr. Lolling appointed Dr. Hoven as Ding’s deputy in Buchenwald”. The appointment, therefore, did not take place by way of Genzken.

The order channel, Himmler-Grawitz-Genzken-Mrugowsky-Ding, as stated in the verdict, is based exclusively on the affidavit of Dr. Hoven dated 24 October 1946, Prosecution Exh. No. 281. When he was interrogated, Hoven stated under oath that this channel of command was correct only for the manufacturing station in Block 50 and not for the research institute in Block 46 (_see p. 9913 of the English record_). When Mrugowsky was interrogated, he also stated under oath “that this command relationship referred solely to the vaccine _manufacture_ in Block 50. This chain of command did not refer to Block 46, and insofar as it is touched by it, this channel of giving orders is not correct” (_see p. 46 closing brief of the defense_).

From all this evidence it follows conclusively that Hoven’s statement cannot be used as supporting evidence for a conviction against Genzken. For he was not a station on this channel of giving orders and had never had anything to do about giving orders concerning the carrying out of the typhus experiments in Block 46 until 1 September 1943.

If, therefore, the verdict states that Genzken was responsible for the carrying out of the typhus experiments, then the verdict does not take into consideration the proven fact that not Genzken, but Grawitz was the one who gave the order to carry out research experiments in the concentration camp Buchenwald on concentration camp inmates. Only he who gives the order to carry out an action and who was a party to it in some other ways can be responsible for the act. Nothing of the sort has been proved against Genzken. If, as established by Document Mrug. Exh. No. 107, Grawitz gave the order to carry out typhus experiments to Ding, then it is impossible that Genzken too could have given such an order, if for no other reason, because he was never the competent authority for scientific research and projects. Furthermore on the basis of his testimony as a witness, it has been established that he never received an order to this effect by Grawitz, and that Grawitz purposely excluded him from exerting any influence on the research projects in Block 46.

In Genzken Exhibit No. 3, Mrugowsky confirms “that Grawitz, in conversations with him, frequently emphasized that he—Grawitz—was the only one responsible for research and planning assignments within the SS, and that Genzken had nothing to do with them.”

The assumption in the verdict is, therefore, not correct that Ding undertook typhus research “for” the Hygiene Institute (_page 97, German text of the verdict_). As already mentioned above and as proved beyond doubt during the trial, Ding did not undertake these typhus experiments for the Hygiene Institute of the Waffen SS, but exclusively for his employer and commander, Grawitz.

Genzken, therefore, was not responsible for the carrying out of the typhus experiments, since he neither commanded nor ordered those experiments.

If furthermore the Tribunal is trying to construe incriminating evidence against Genzken by claiming that Genzken provided the funds for Ding’s expenses (_see page 97 and 99 of the German text_), this too is a mistake. Genzken expressly said under oath that he never provided any money for Ding’s experiments, but that only for Ding’s personal needs had funds been transferred to the Waffen SS through the medical office. In the Genzken Document No. 17, Genzken Exhibit No. 15, Rudolf Tonndorf says “that he never paid or ordered payment for the upkeep or provided other funds for scientific experiments or for institutions which served such purposes, because such scientific research work was not the concern of the medical office of the Waffen SS, but exclusively that of the office of the Reich Physician of the SS and Police, Dr. Grawitz.”

In Genzken Exhibit No. 8, Barnewald states under oath “that the entire administrative care for Block 46 was the concern of the Buchenwald camp administration through the official channels via the patients’ building of the concentration camp. The administration of the medical office of the Waffen SS had officially nothing to do with administrative matters concerning Block 46.”

On page 6 of the Ding diary—Prosecution Exhibit No. 287—it says that Pohl, the Chief of the Main Administrative and Economic Office, gave the order for the enlargement of a block of stone buildings. On page 9 of that same document a conference between Ding and two representatives of the Main Administrative and Economic Office is mentioned (Barnewald and Schlesinger), who occupied themselves with the breeding of experimental animals for the experimental department.

Not Genzken, but the authorities competent for the economic supply of the concentration camps, namely, the Main Administrative and Economic Office therefore carried through the financing of the typhus experiments via the camp administration of the concentration camp Buchenwald.

II
_Genzken had no knowledge of the character and of the extent of
the experiments carried out in the field of typhus research
in Block 46_

The statement in the verdict (_page 105_) “that Genzken knew that the prisoners were subjected to cruel medical experiments, in the course of which deaths were occurring,” is not proved in any way.

The verdict itself (_page 98_) states that Genzken said “that he was aware of the fact that concentration camp inmates were subjected to experiments, and that he stated that he was not advised as to the _methods_ of experimentation.” In the cross-examination, Genzken emphasized that the number of the experimental persons, of the series of experiments, the number of dead, the cultures for infections, and the passages had only become clear to him through the trial, and that the names “Block 46” and “Block 50” had been entirely unknown to him up to the trial. As proved by the evidence it is clear, beyond doubt, that Genzken was not informed either by Grawitz, nor by Ding, nor by Mrugowsky about the details of the experiments. Grawitz who distrusted Genzken, consciously never informed Genzken about a single case of his many secret experiments upon human beings in which, according to the documentary evidence he participated. The defense has given sufficient evidence for this fact. Grawitz even prevented Mrugowsky from informing Genzken (_Document Genzken, Exhibit No. 3_): “This is none of Genzken’s business.”

It has also been made very clear by the defense that Ding had never given any oral or written information about the details of the experiments. The prosecution could not produce any evidence for such information.

The verdict speaks about a “warm personal friendship between Genzken and Ding” (_page 97_). Their relationship never was more than one of official comradeship. They did not use the intimate “Du” in addressing each other. Ding was never a guest at Genzken’s house. Once Ding was presented to Frau Genzken. The two women did not know each other at all.

Ding’s scientific reports concerning his research went directly to Grawitz via Mrugowsky. To the question whether it was not true that reports concerning the typhus experiments in Block 46 went to the office of the Reich Physician of the SS and of the Police Grawitz, the prosecution witness Kogon answered by saying: “This is correct” (_see p. 1290 of the English Transcript_). Mrugowsky said in this connection:

“The reports were never presented to Genzken through me but in a new envelope went directly to Grawitz” (_see p. 5366 of the English Transcript_). Finally the witness Dumont in figure 7 of her affidavit (_Document Mrugowsky, Exhibit 13, page 51, Document Book Mrug. I_) declared: “The reports which Ding made concerning his experiments with prisoners were directed to Grawitz via the Hygiene Institute.”

The verdict tries furthermore to base the fact that Genzken knew about the typhus experiments via stating that once a report by Mrugowsky of 5 May 1942 went to him and that besides this, he had been personally informed about everything by Mrugowsky. Both conclusions are also wrong and are in direct contradiction to the evidence.

The only document of the prosecution which, according to the distributor mentions the name of Genzken at all, is the report by Mrugowsky of 5 May 1942, mentioned in the verdict (_page 99 and following_). The conclusions which the Tribunal feels compelled to have to draw from this report to the prejudice of Genzken do not apply if only for the reason that this report was _never_ made available to Dr. Genzken. Mrugowsky said in this respect: “This report was not presented to Genzken himself but was even later on, until the end, in the files of Amt XVI.” (_See reply of the defense to the closing brief of the prosecution, p. 5_). Genzken cannot be made responsible for something he, as has been proved, never knew. If he never saw that report of Mrugowsky and if he never knew of its existence, it cannot serve as an incriminating evidence against him.

It is not correct, that before 1 September 1943 Mrugowsky gave regularly, on the average once a week, oral or written reports concerning the typhus experiments to Genzken. Mrugowsky only said that about once a week he reported to Genzken on the hygiene of the troops at the meeting of the Referenten[59] of the medical office. Mrugowsky did this in his capacity as leading hygienist of the medical office (Sanitaets-Amt). Mrugowsky never reported to Genzken about the typhus experiments, on the occasion of these weekly reports and meetings of Referenten (Heads of Referate, Departments in a Ministry), if only because of the fact that these experiments did not fall within the scope of the work of the medical office of the Waffen SS, and because, upon Grawitz order, they were to be kept strictly secret. Written reports were never made at all. The established fact that in the medical office there was not the slightest information about, nor was there ever any discussion of, typhus experiments or any other experiments upon human beings in concentration camps, in itself shows that on Mrugowsky’s part, no oral or written reports were submitted to the medical office of the Waffen SS. Four participants in such meetings of the Referenten of the medical office have borne witness to this fact (_see p. 52 of the closing brief for the defense_).

The sole report of the spring of 1943 has been described in detail by Mrugowsky. His explanations were incorporated into the verdict word for word. The Tribunal thus considers them to be true and accurate. Mrugowsky and Genzken both stated under oath that Genzken had not seen that infection dates and incidents of death had been marked in the charts which were submitted to him. Mrugowsky stated literally as follows: “I had no cause to call his attention to these things expressly because actually I made no report to him concerning Ding’s experimental series, but merely wanted to give him factual information concerning the protective effect of certain vaccines, which he as head of the medical office had to know.”

On pages 25-26, the verdict states: “In Anglo-Saxon law, every defendant in a criminal proceedings for a crime of which he is accused is considered innocent until the prosecution has brought sound credible proof of his guilt, excluding all reasonable doubt. This assumption applies to the defendant throughout all the stages of the trial, until such proof has been brought. ‘Reasonable doubt’ is, as the name implies, doubt that is in keeping with reason, a doubt that a reasonable person would entertain.”

These statements must be completely and entirely agreed to. But, when applied to this very case of defendant Genzken and especially to his alleged knowledge of the experiments, it can under no circumstances be said that the evidence brought by the prosecution is sufficient to provide the judge with a lasting conviction giving him the moral certainty the accusation is true. For Genzken did not see Mrugowsky’s report, and the single report made by Mrugowsky presents, according to the latter’s statement, no sound and conclusive proof of Genzken’s knowledge.

The verdict holds Genzken responsible (_p. 103_) “for having nevertheless neglected to reassure himself that his experimental work was being carried out within permissible legitimate limits.”

III
_Genzken had no official supervisory power and no chance
to intervene by giving orders and also no reason
at all to reassure himself_

As witness, Genzken himself stated that he had merely known that a new typhus vaccine was to be produced in an institute at Buchenwald. Genzken had no knowledge whatsoever in this specialized field of hygiene, as well as no bacteriological training at all, and had never conducted scientific research work. He had no reason at all to assume that, in connection with this research, prisoners would be used in a criminal manner. He was merely of the opinion that the prisoners were brought in for purposes of checking the efficacy of the vaccine, in the form of experimental series which were generally customary in medical research. It was only during the course of the trial that he for the first time learned of deliberate infections and that there had been many deaths during the experimental series. He could not know anything about these facts, especially because the assignment of the prisoners was, as a concentration camp matter, completely outside of his sphere of duties. When, on page 103 (German text), the verdict implies that Genzken had undertaken no steps to reassure himself about the condition of the experimental subjects or of the circumstances under which they had been taken to the experimental block, this implication of the verdict is also incorrect, because the prisoners were not assigned by the medical office of the Waffen SS, but by the office in charge of the administration of the concentration camp in collaboration with the Reich Criminal Police Office. Until the trial, he had not even known that non-Germans were called in as experimental subjects. This and the fact that all experiments were kept strictly secret made it impossible for Genzken to institute investigations or to undertake steps to reassure himself about the condition of the experimental subjects. If, finally, on page 98 of the verdict, reference is made to Ding’s diary in order to support the judgment, it must above all be stated that there are grave doubts as to the probative value of this document (_see p. 27 and the following of the closing brief for the defense_). The verdict asserts that Kogon kept the original diary. That is not in keeping with the facts; in any case it would have been impossible for the period from December 1941 to June 1943, because Kogon only became Ding’s secretary on the latter date (_see p. 1259 of the English Transcript_). On page 99 of the verdict, the Tribunal itself makes the following statement in connection with the entry for 9 January 1943 referred to in order to incriminate Genzken: “if Ding’s proven attempts at self-glorification are taken into account, one should not credulously accept this entry in its existing form.” Thus in this connection the statements on page 25 and 26 of the verdict regarding the Tribunal’s conviction apply in particular. If even the Tribunal, and quite rightly so, feels considerable doubts as to the correctness and significance of this entry, it is not permissible to use it in order to the prejudice of the defendant. Besides, Genzken expressly declared as also confirmed by Kogon (_see p. 1228 of English Tr._) that he never expressed his approval with regard to the department for typhus research, but that this entry would have to be interpreted as his consent to the change of name of the vaccine _production_ laboratory. This intended change of name was not effected until after 1 September 1943, thus at a time when Genzken was no longer responsible. (_See p. 32 and following of the closing brief for the defense._)

The verdict states at the end of the opinion for Genzken’s sentence that he was responsible for the typhus experiments and that he assisted in them and furthered them.

In the face of all this, the result of the case in chief is once again to be summarized as follows:

Genzken had no responsibility, no authority to give orders, and
no official supervisory power regarding the Typhus Experimental
Station in Block 46 of the Buchenwald concentration camp. All
these were in the hands of Grawitz. The latter gave direct
orders for the experiments to be carried out to Ding who was his
immediate subordinate. Ding’s reports went directly through
Mrugowsky to Grawitz and never to Genzken. The latter had no
knowledge whatsoever of the criminal methods of the experiments.
Genzken had no responsibility, no official supervisory power,
and no possibility to interfere by an order; owing to his
ignorance of the facts, he had no cause to reassure himself of
the conditions under which the experiments took place. Therefore
a sentence in connection with counts two and three of the
indictment ought not to follow. I, therefore, ask that the
verdict should not be confirmed on these points, as Genzken is
not guilty of a war crime or of a crime against humanity as is
clearly proved by the evidence.

With regard to his membership in the SS, this fact alone is not
sufficient to bring about his conviction before the American
Military Tribunal. In addition, it would be necessary that his
knowledge of _criminal_ experiments should have been proved as
in the Poppendick case. However, in accordance with the above
statements this is not the case.

Only the competent German Denazification Board could convict the
defendant for his SS membership. I therefore propose that the
case be referred to the Denazification Board competent for his
home town Preetz/Holstein.

[Signature] DR. R. MERKEL,
_Attorney-at-Law_.

_FOR THE DEFENDANT RUDOLF BRANDT_

Dr. Kurt Kauffmann Counsel for the Defense of the Defendant Rudolf Brandt

Nuernberg, 2 September 1947

To the Military Governor of the American Zone of Occupation in Germany.

Through the Secretary General at Military Tribunal No. I, Nuernberg.

As counsel for the defense of Rudolf Brandt, who has been sentenced to death, I herewith petition that the judgment of the American Military Tribunal No. I, dated 19-20 August 1947, not be confirmed.

It is perhaps the grandest task of a human being and counsel for the defense to intercede on behalf of another person and to commend him to the clemency of the mighty.

Clemency appeals to the understanding of the great for human weakness. Clemency is the opposite of pure criticism and spiteful anger.

For this reason I remain quiet in the face of the sentence pronounced; I do not raise any complaint because, in one point or another, the decision of the Tribunal does not perhaps entirely agree with my opinion of the course of events, of the position of the defendant at that time, and of his character.

This petition for clemency wants once more to go into the depths of the thoughts which basically were already the subject of my final plea.

One may well believe that at the beginning of the trial, after I had studied the case of Rudolf Brandt, I recognized that this task was hardly to be rewarded with success; nevertheless it seemed to me that it was worth my efforts to take over the defense, since I believed—then as well as now—that Rudolf Brandt is guilty to receive any kind of punishment but not the death sentence.

Not a few of the statements made in my final plea serve this idea. I must admit, however, that even I, as the counsel for his defense, arrived at this conviction only on the strength of the characterization of the personality of the defendant contained in my document book, as well as on the strength of my own judgment of him, which sees in Brandt a beast of burden which dragged on day and night without really recognizing the contents of its burden; for the burden which it carried, together with the weights, which make this trial such a terrible one, were only a small fraction of the gigantic burden under which the bearer himself was not visible any more.

This comparison can be drawn without difficulty from the evidence presented by the defense.

I take the liberty—because it seems characteristic in this respect—to refer to some pieces of evidence which have already been submitted to the Tribunal, namely:

(1) the affidavit of Medizinalrat Felix Kersten of Stockholm
(_Document Book Rudolf Brandt, page 8_).

(2) two affidavits from Schellenberg and Dr. Stuckart (_Document
Book Rudolf Brandt, pp. 16-17 and pp. 23-24_).

(3) I once more refer to the final plea of Rudolf Brandt
(_English transcript, pages 11330-35_).

(4) I attached two letters of the World Jewish Congress in Paris
and Stockholm, addressed to the above-mentioned Felix Kersten,
which had been rejected by the Tribunal as unessential pieces of
evidence, which, however, throw a distinct light on the
personality of Felix Kersten, who, on his part, defends so
warmly Rudolf Brandt.

The fact that Rudolf Brandt did not make his own decisions but was under the command of Himmler can be found a mitigating consideration according to Law No. 10 of the Control Council, Article II 4 _b_.

I appeal to the generosity of the great to make use of this possibility to mitigate the sentence.

A sentence of imprisonment is also a heavy expiation.