Chapter VII: Part I: , p. 1457.) Moreover, there is no proof that any of the (4)

Q. Witness, that is not the question. I am not interested in whether the state can order some one to murder; I am interested in the question whether, in your opinion, the state can order, let us say dangerous experiments, experiments in which perhaps fatalities may occur. In America, too, deaths occurred several times in experiments; what is your view on this?

A. The state, as far as I know, in the United States of America has never ordered scientists to perform any experiment where death is likely to occur.

Q. Doctor, I did not say where death was probable, I said where death is possible, and I ask you to answer the question I put to you. If deaths are probable, then you are correct, then it is murder. If deaths are possible, then I want to know what you say to that. And, let me remind you, Doctor, that even in the American Air Force deaths did occur; in other words, death was possible.

A. Yes, I agree that it is possible for deaths to occur accidentally in experiments which are hazardous. As I said in my testimony under such conditions when they do occur, their cause is investigated very thoroughly as well as the circumstances surrounding the death.

* * * * *

Q. Witness, you spoke yesterday of a number of experiments carried out in the United States and in other countries outside of Germany. For example, pellagra, swamp fever, beri-beri, plague, etc. Now, I should like to have a very clear answer from you to the following question. In these experiments which you heard of partly from persons involved in them and partly from international literature, did deaths occur during the experiments and as a result of the experiments or not? Professor, I ask you this question because you said yesterday that you examined all international literature concerning this question and, therefore, have a certain specialized knowledge on this question.

A. I also said that when one reviews the literature, he cannot be sure that he has done a complete or perfect job.

So far as the reports I have read and presented yesterday are concerned, there were no deaths in trench fever. There were no deaths mentioned, to my knowledge, in the article on pellagra. There were no deaths mentioned, to my knowledge, in the article on beri-beri, and there were no deaths in the article, according to my knowledge, in Colonel Strong’s article on plague. I would not testify that I have read all the articles in the medical literature involving the use of human beings as subjects in medical experiments.

Q. And, in the literature which you have read, Witness, there was not a single case where deaths occurred? Did I understand you correctly?

A. Yes. In the yellow fever experiments I indicated that Dr. Carroll and Dr. Lazare died.

Q. That is the only case you know of?

A. That’s all that I know of.

* * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE[29]

_CROSS-EXAMINATION_

* * * * *

MR. MCHANEY: Now, would the extreme necessity for the large scale production of typhus vaccines and the resultant experiments on human beings in concentration camps have arisen had not Germany been engaged in a war?

DEFENDANT ROSE: That question cannot simply be answered with “yes” or “no”. It is, on the whole, not very probable that without the war, typhus would have broken out in the German camps, but it is not altogether beyond the bounds of possibility because in times of peace too typhus has broken out in individual cases from time to time. The primary danger in the camps is the louse danger, and infection by lice also occurs in times of peace. If typhus breaks out in a camp that is infected with lice, a typhus epidemic can arise in peacetime too, of course.

Q. But Germany had never experienced any difficulty with typhus before the war. Isn’t that right?

A. Not for many decades, no.

Q. You stated that nine hundred persons were used in Dr. Strong’s plague experiments?

A. Yes, I know that number from the literature on the subject.

Q. What is the usual mortality in plague?

A. That depends on whether it is bubonic plague or lung pest. In one, namely, bubonic plague, the mortality can be as high as sixty or seventy percent. It also can be lower. In lung pest, the mortality is just about one hundred.

Q. How many people died in Dr. Strong’s plague experiments?

A. According to what his reports say, none of them died, but this result could not have been anticipated because this was the first time that anyone had attempted to inoculate living plague virus into human beings, and Strong said in his first publication in 1905 that he himself was surprised that no unpleasant incidents occurred and that there was only severe fever reaction. That despite this unexpectedly favorable outcome of Strong’s experiments the specialists had considerable misgivings about this procedure can be seen first of all from publications where that is explicitly stated; for example, two Englishmen say that, contrary to expectations, these experiments went off well but nevertheless this process cannot be used for general vaccination because there is always the danger that, through some unexpected event, this strain again becomes virulent. Moreover, from other works that Strong later published it can be seen that guinea pigs and monkeys that he vaccinated with this vaccine died not of the plague, but of the toxic affects of the vaccine. All these difficulties are the reason why this enormously important discovery which Koller and Otto made in 1903, and Strong in 1905, has only been generally applied, for all practical purposes, since 1926. That is an indication of the care and fear with which this whole matter was first approached, and Strong could not know ahead of time that his experiments would turn out well. I described here the enormous concern that Strong felt during all these months regarding the fact that that might happen which every specialist feared, viz., that the virus would become virulent again. That is an enormous responsibility.

Q. Be that as it may, nobody died. That is a fact, isn’t it?

A. If anyone did die, the publications say nothing about it. There were deaths only among the monkeys and guinea pigs that are mentioned in the publication. If human beings died, there is no mention in the publication. It is generally known that if there are serious accidents in such experiments as this, they are only most reluctantly made public.

Q. Now, Professor, I have no wish to limit you but, as I understand it, you have explained these things in considerable detail during the four days in which you have already testified. If you can give a short answer to my question that is all I want. If I want any further explanation I’ll ask you for it.

Now, what is the normal death rate in beri-beri?

A. That depends on the medical care given. If the care is good, the mortality is zero, and if they have no medical care at all, then a lot of them die.

Q. Sixty to eighty percent would probably die if they were not treated. Is that right?

A. Beri-beri lasts for many, many months before a person dies, and usually one does not die of beri-beri in sixty days—that would be a severe case.

Q. How many people did Strong use in his beri-beri experiments? Is twenty-nine all you know about?

A. So far as I know from the literature, the number was twenty-nine.

Q. Well, it says in the literature that he used only twenty-nine. Is that right?

A. So far as I know, yes.

Q. And one of those died?

A. According to what the literature says, one of them died.

Q. What is the mortality in typhus?

A. That varies enormously. It depends on the epidemic. In some epidemics the mortality is five percent. In general, you count on a mortality of twenty percent. In the Serb-Albanian epidemic in 1915, there was a mortality of seventy percent, but that mortality rate is so extraordinarily high that it is generally assumed that probably, in reality, there were more cases of typhus than were actually reported.

Q. Well, we could take roughly five to thirty percent as the mortality. Is that right?

A. Yes. That is what the textbooks generally say.

Q. What was the mortality in the Buchenwald experiments, Professor?

A. In the controlled cases in the experiments that I knew of, the mortality rate was thirty percent.

Q. Among the controls, you figured thirty percent?

A. Yes. There were ten control persons in the first group of experiments, and of them, three died.

Q. Three died? Well, but I assume that you have read through the Ding diary and let us assume for the moment that it is correct. Didn’t you say that they also used control persons in the four or five other series of experiments?

A. In the controlled cases where they were testing the vaccine, the general mortality rate was thirty percent. But then there were these therapeutic experiments in which, according to the diary, blood infections were undertaken and, in this case, the diary does mention an unusually high mortality rate.

Q. Well, Professor, for your information, we have figured out five control series in the Ding diary, and I mean by controls those that were not treated with anything. The mortality ranges between fifty-four to one hundred percent and averaged eighty-one percent. Do you accept those figures as correct? I mean, do you think that’s right?

Q. No. That does not correspond with the impression I got from the numbers in the diary, but I did not calculate it so precisely as all that. I looked at the individual experiments and it is true that, for instance, in these therapeutic experiments, Ding’s work mentions a mortality of something like fifty to fifty-five percent, and then there is one series that deals with blood infection where of twenty people, I believe nineteen died.

Q. Let me put it to you, Professor, is it not a fact that they were not dealing with epidemic typhus in Buchenwald, but with a super-typhus, developed from man to man passage, which was much more virulent and much more deadly than any typhus you could expect in an epidemic?

A. That I cannot judge because I have no knowledge of the work done in Buchenwald and can only refer to what Ding’s diary says, which I regard as unreliable.

Q. Well, if you regard it as reliable, Doctor, and if you figure out the deaths among the untreated control persons and find a mortality which averaged eighty-one percent, will you not, as a scientist and an expert on tropical diseases, concede that they had developed a highly virulent, something we might call a super-typhus, in Buchenwald? Isn’t that right, Professor?

A. As a scientist, I am accustomed to state my opinion on the basis of reliable documentation and not on the basis of such falsifications which are produced for a special purpose.

Q. I can appreciate that you do not regard the document as reliable, Professor, but we will investigate that a little later.

* * * * *

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

[2] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.

[3] See section on Status of Occupied Poland under International Law, vol. I, pp. 974-979.

[4] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 11020-11048.

[5] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11268-11288.

[6] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. ’47, pp. 2301-2661.

[7] Complete testimony is recorded in mimeographed transcript, 15, 16 Apr. 1947, pp. 5926-5994.

[8] Complete testimony is recorded in mimeographed transcript, 12, 13, 14 June 1947, pp. 9029-9824.

[9] Closing statement is recorded in mimeographed transcript, 14 July 47, pp. 10718-10796.

[10] United States _vs._ Erhard Milch. Concurring Opinion of Judge Musmanno, vol. II, sec. VII, B.

[11] See also excerpts from the closing brief for the defendant Karl Brandt (Section VIII E, vol. I, pp. 983-990).

[12] Final plea is recorded in mimeographed transcript, 15 July 47, pp. 10874-10911.

[13] Art. 59 of the German Penal Code reads:

“If a person in committing an offense did not know of the
existence of circumstances [Tatumstaende] constituting the
factual elements of the offense as determined by statute
[gesetzlicher Tatbestand] or increasing the punishment, then
these circumstances may not be charged against him.

“In punishing an offense committed through negligence, this
provision applies only insofar as the lack of knowledge does not
in itself constitute negligence for which the offender is
responsible.”

[14] Complete testimony is recorded in mimeographed transcript, 26, 27, 28, 31 March, 1, 2, 3 Apr. 47, pp. 5000-5244, 5334-5464.

[15] Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 47, pp. 9029-9324.

[16] Final plea is recorded in mimeographed transcript, 18 July 47, pp. 11289-11309.

[17] Final plea is recorded in mimeographed transcript, 17 July 47, pp. 11128-11152.

[18] Complete testimony is recorded in mimeographed transcript, 26, 27, 28, 31 March, 1, 2, 3 Apr. 47, pp. 5000-5244, 5334-5464.

[19] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 47, pp. 6081-6484.

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

[21] Final plea is recorded in mimeographed transcript, 15 July 47, pp. 10874-10911.

[22] Final plea is recorded in mimeographed transcript, 17 July 47, pp. 11128-11152.

[23] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 1947, pp. 6081-6484.

[24] Professor of History of Medicine at Erlangen University.

Complete testimony is recorded in mimeographed transcript, 27 Jan. 1947, pp. 1961-2028.

[25] Complete testimony is recorded in mimeographed transcript, 12, 13, 14 June 1947, pp. 9029-9324.

[26] Final plea is recorded in mimeographed transcript, 16 July 47, pp. 10972-10994.

[27] Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 47, pp. 9029-9324.

[28] To the question of conscientious objection in the United States, see Section VIII E—Voluntary Participation of Experimental Subjects, cross-examination of Dr. Ivy (vol. I, p. 944 ff.).

[29] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 47, pp. 6081-6484.

IX. RULING OF THE TRIBUNAL ON COUNT
ONE OF THE INDICTMENT[30]

PRESIDING JUDGE BEALS: The Secretary General will note for the record the presence of all the defendants in Court.

The Tribunal will now announce its ruling on the motion of certain defendants against Count I in the indictment concerning the charge of conspiracy.

_MILITARY TRIBUNAL I_

Count I of the indictment in this case charges that the defendants, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, Article 2. It is charged that the alleged crime was committed between September 1939 and April 1945.

It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.

Count I of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of Count I from the indictment, but insofar as Count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.

This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances, occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10.

-----

[30] Tr. pp. 10717-10718, 14 July 47.

X. FINAL PLEA FOR DEFENDANT KARL BRANDT[31]
BY DR. SERVATIUS

Mr. President, your Honors:

I cannot comment on all the questions which the prosecution brought up this morning. I must limit myself to a few things and can refer to my closing brief where I have gone into considerable detail on all these questions.

This morning I heard the detailed legal arguments advanced by the prosecutor. I have commented particularly on these legal questions in my closing brief, and I will now merely make a few brief comments.

The prosecution assumes that Law No. 10 is an independent law. This is not correct, for it designates itself explicitly as a law for the execution of the London Charter and declares that Charter to be an integral part of the law.

Now, the sole purpose of the London Charter is to punish disturbances of international legal relations, and not what has happened or is happening somewhere within an individual state. Any other interpretation would put an end to the conception of sovereignty, and it would give right of intervention into the affairs of other states.

In the trial before Tribunal III, Case No. 3, against Flick et al.,[32] General Taylor referred to an alleged right of intervention, quoting a considerable amount of literature with regard to this right of intervention into the internal affairs of another country.

I have ventured to refer to the position taken concerning this by one of the four signatory powers of the London Charter, a signatory power which was itself the victim of intervention in the name of civilization, the Soviet Union. I have attached the said literature to part I of my closing brief.

The Soviet Union drew a clear inference from the intervention to which it had been exposed by the Entente at the end of the First World War and obtained an alteration in the text of the London Charter, under which intervention would have been possible, by insisting that the text, which was ambiguous in consequence of the punctuation, be altered by the insertion of a comma. This comma was so important that the representatives of the four signatory powers met on purpose to discuss it.

It results therefrom that the internal affairs of a country cannot be affected by the London Charter and, consequently, by Law No. 10. Punishment by this Tribunal of acts committed by Germans against Germans is therefore inadmissible.

The prosecution further discussed at length this morning another question, that is the question of conspiracy. I have also commented on that in my closing brief. I will merely make a brief reply here to the prosecution.

The point of view of the defense, that a charge of conspiracy as an independent offense is inadmissible, was confirmed by the Tribunal’s decision of today. In that way the leak in the dike, so to speak, was stopped, and one cannot let the ocean pour into the land from the other side by declaring the conception of conspiracy admissible under common law.

The conception of conspiracy is really only a technical expedient of the jurists. Its purpose is to effect, beyond the number of accomplices in the true sense of the word, other persons who are considered deserving of punishment, but who cannot be proved guilty of complicity.

This may be done where the law against conspiracy is common law. If, however, this law is introduced in Germany after the event and applied to facts which have occurred in the past, this would mean that by a detour of the law of procedure new conceptions of offense would be introduced into material law. This would amount to an _ex post facto_ law and is, therefore, illegal according to legal principles generally recognized.

The purpose of enlarging the circle of participants cannot be attained under Law No. 10 by breaking up the conception of conspiracy into its component parts and introducing forms of complicity hitherto unknown in Germany.

Now, I shall read my statement proper:

In the closing statement against the defendant Karl Brandt the prosecution discussed very little the counter-evidence brought forward by the defense in the course of the proceedings. They relied to a large extent on evidence already advanced in the indictment.

The affidavits of the defendants themselves play a special part in support of the prosecution. For the defendant Karl Brandt they are important with respect to his position and consequent knowledge of the event referred to in the indictment.

If these affidavits contain imputations they can only be used, according to the Tribunal’s statement, against the affiants themselves. As far as they involve the defendant Karl Brandt, however, they have been clarified in respect to the decisive issues. But in spite of this correction the first statements may prejudice credibility unless good reasons justify such correction.

Here the result of interrogations made in the initial proceedings is in contradiction to the evidence given before the Tribunal. On the basis of practical experience, German law considers as valid evidence only the result of an interrogation made by a judge. The reason is the lack of impartiality which may be found, quite naturally, in the case of an interrogating official who is to conduct the prosecution. The capacity of the interrogator to elicit the truth impartially depends on his character, his training, and his professional experience.

The qualification of the interrogators has been attacked here by the defense, but the prosecution has made no effort to substantiate it.

In order to form a judgment it is also important to know the general lines on which the prosecution carries out its interrogations. Under German law the prosecutor also has to ascertain and put forward exculpating material when investigating a case personally or through assistants. As to American procedure, Justice Jackson clearly rejected this principle during the trial before the International Military Tribunal and said he could never serve two masters.

This critical view of the affidavits is confirmed by their contents, which frequently show the struggle between the interrogator and the interrogated person. He is no classical witness who says, “I believe,” “I presume,” “as far as I remember,” and so on, for he shows thereby that he can give no positive information. And such testimony becomes completely worthless if conclusions are drawn in the form of, “It would have been impossible for him,” “he might have known,” “perhaps he was the highest authority,” and so forth.

Not only individual words thus demonstrated that the testimony is composed of conclusions, but whole parts of the reports show the same character.

In view of all this, the defendants’ contentions are to be believed, that they raised objections but succumbed to the weight of the prepared record presented to them and signed, trusting that they would have an opportunity later to clarify deficiencies and to state their true opinion.

This criticism of the defendants’ affidavits is also called for in the case of the affidavits given by the witnesses for the prosecution. Facts are recorded therein which the witnesses did not know themselves, but which they had only heard about, and which they presumed after having been made to believe them by persuasion. The individual cases in which objections are to be raised on these lines have been dealt with in the closing brief.

The charges advanced against the defendant Karl Brandt include medical experiments on human beings and euthanasia. In both cases the defendant is charged with having committed crimes against humanity.

The press comments on the proceedings, anticipating the sentence and publishing articles about base characters and depravity. Pamphlets with striking titles appear.

On the other hand the Tribunal will make itself acquainted with the literature collected by the defense as evidence. If one reads this literature one loses one’s self-confidence and cannot conclude without admitting that these are problems which persons not considered criminals tried to solve before the defendants. These are problems of the community. The individual may make suggestions for their solution, but the decision is the task of the community and therefore of the state. The question is how great a sacrifice may the state demand in the interest of the community? This decision is for the state alone.

How the state decides depends on its free discretion, and finds its limit only in the rebellion of its citizens. In obeying the orders of his state, the defendant Karl Brandt did no wrong. If sentence is passed against him, it would be a political sentence against the state and the ideology it represents.

One can condemn the defendant Karl Brandt only by imposing on him the duty of rebellion and the duty of having a different ideology to his environment.

It is contended that the state finds its limits in the eternal basic elements of law, which are said to be so clear that anyone could discern their violation as a crime, and that loyalty to the state beyond these limits is therefore a crime. One forgets that eternal law, the law of nature, is but a guiding principle for the state and the legislator and not a counter-code of law which the subject might use as a support against the state. It is emphasized that no other state had made such decisions up to now. This is true only to a certain extent. It is no proof, however, that such decisions were not necessary and admissible now. There is no prohibition against daring to progress.

The progress of medical science opened up the problem of experiments on human beings already in the past century, and eventually made it ripe for decision. It is not the first time that a state has adopted a certain attitude with regard to euthanasia with a change of ideology.

Only the statesmen decide what is to be done in the interests of the community, and they have never hesitated to issue such a decision whenever they deemed it necessary in the interest of their people. Thereupon their rules and orders were carried through under the authority of the state, which is the basis of society.

Inquisition, witch trials, and revolutionary tribunals have existed in the name of the state and eternal justice, and the executive participants did not consider themselves criminals but servants of their community. They would have been killed if they had stood up against what was believed to be newly discovered eternal justice. What is the subject to do if the orders of the state exceed the customary limits which the individual himself took for inviolable according to tradition.

What did the airman think who dropped the first atomic bomb on Hiroshima? Did he consider himself a criminal? What did the statesmen think who ordered this atomic bomb to be used. We know from the history of this event that the motive was patriotism, based on the harsh necessity of sacrificing hundreds of thousands to save their own soldiers’ lives. This motive was stronger than the prohibition of the Hague Convention, under which belligerents have no unlimited right in the choice of methods for inflicting damage on the enemy.

“My cause is just and my quarrel honorable,” says the king. And Shakespeare’s soldier answers him: “That’s more than we know.” Another soldier adds: “Ay, or more than we should seek after; for we know enough if we know we are the king’s subjects; if his cause be wrong, our obedience to the king wipes the crime out of us.”

It is the hard necessity of the state on which the defense for Karl Brandt is based against the charge of having performed criminal experiments on human beings.

Here also—in addition to the care for the population—the lives of soldiers were at stake, soldiers who had to be protected from death and epidemics. In Professor Bickenbach’s experiment, the issue was the lives of women and children who without 45 million gas masks would have been as unprotected against the expected gas attack as the Japanese were against the atomic bomb. Biological warfare was imminent, even praised abroad as cheaper and more effective than the atomic bomb.

Is it really against the law and all political morals if the state in such a situation provides for the expected emergency and orders the necessary medical experiments to be performed on its own citizens? As applied to foreigners such procedure is limited in principle. In my closing brief I have discussed the exceptions.

What is to be done is decided not by the physician but by the political leader. Even the expert Dr. Ivy had to grant him the fundamental authority.

The question is why, with the legal position so clear, a man like Keitel refused to have such experiments carried out in the Wehrmacht, and why some of the defendants themselves try to disprove any connection with the experiments. The answer is that a measure may be as unavoidable as war and yet be abhorred in the same way.

Unlike Professor Ivy, these men certainly considered these experiments an evil, and their desire was not to become involved in them personally, if possible, and not to allow troops to participate in them who should not be burdened with such questions and who had no insight into the necessity of the measures to be taken. In spite of everything, Germany was not yet so “communized” that all private feelings in the individual had disappeared.

The prosecution opposes to this necessity the condition of absolute voluntariness.

It was a surprise to hear from the expert Professor Ivy that in the penitentiaries many hundreds of volunteers were pressing for admission to experiments, and that more volunteered than could be used. I do not want to dispose of this phenomenon with irony and sarcasm. There may be people who realize that the community has the right to ask them for a sacrifice. Their feeling of justice may tell them that insistence on humanity has its limits. If humanity means the appeal to the strong not to forget the weak in the abundance of might and wealth, the weak should also make their contribution when all are in need.

But what if in the emergency of war the convicts, and those declared to be unworthy to serve in the armed forces, refuse to accept such a sacrifice voluntarily, and only prove an asocial burden to state and community and bring about the downfall of the community? Is not compulsion by the state then admissible as an additional expiation?

The prosecution says “No”. According to this human rights demand the downfall of human beings.

But there is a mixture of voluntariness and compulsory expiation, “purchased voluntariness.” Here the experimental subject does not make a sacrifice out of conviction for the good of the community but for his own good. The subject gives his consent because he is to receive money, cigarettes, a mitigation of punishment, etc. There may be isolated cases of this nature where the person is really a volunteer, but as a rule it is not so.

If one compares the actual risk with the advantage granted, one cannot admit the consent of these “voluntary prisoners” as legal, in spite of all the protective forms they have to sign, for these can only have been obtained by taking advantage of inexperience, imprudence, or distress.

Looking through medical literature, one cannot escape the growing conviction that the word “volunteer”, where it appears at all, is used only as a word of protection and camouflage; it is hardly ever missing since the struggle over this problem became acute.

I will touch only briefly on what I have explained in detail in my closing brief. No one will contend that human beings really allowed themselves to be infected voluntarily with venereal disease; this has nowhere been stated explicitly in literature. Cholera and plague are also not minor inconveniences one is likely to undergo voluntarily for a trifle in the interest of science. Above all, it is not customary to hand over children for experimental purposes, and I cannot believe that in the 13 experiments carried out on a total of 223 children, as stated in Document Karl Brandt 117, Karl Brandt Exhibit 103, the mothers gave their consent. Would not the mothers have deserved the praise of the scientist for the sacrifice they trustfully made in the interest of science, praise which is otherwise liberally granted to real volunteers in reports on experiments?

Is it not likely to have been similar to the experiments carried out by Professor McCance? (_Karl Brandt 93, Karl Brandt Ex. 29._) The German authorities who condemn the defendants in a particularly violent form have no objection to raise here against the order to hand over weakling children to a research commission for experimental purposes. The questionnaires which the Tribunal approved for me in order to get further information about this matter have not been answered as the higher authorities did not give permission for such statements to be made. This silence says enough; it is proof of what is supposed to be legal today in the line of “voluntariness”.

It is repeatedly shown that the experiments for which no consent was given were permitted with the full knowledge of the government authorities. It is further shown that these experiments were published in professional literature without meeting any objection, and that they were even accepted by the public without concern as a normal phenomenon when reports about them appeared in popular magazines.

This happens at a time when the same press is stigmatizing as crimes against humanity the German experiments which were necessary in the interests of the state. Voluntariness is a fiction; the emergency of the state hard reality.

In all countries experiments on human beings have been performed by doctors, certainly not because they took pleasure in killing or tormenting, but only at the instigation and under the protection of their state, and in accordance with their own conviction of the necessity for these experiments in the struggle for the existence of the people.

The German doctor who acted in conformity with the German regulations can no more be punished than the American doctor who complied with the requests of his state in the way which is customary there.

Justice is indivisible.

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

The prosecution says he is implicated in almost all the experiments and refers to his position and his connections. They state that he was the highest Reich authority in the medical spheres; there, however, they are misled by an error in translation, for Karl Brandt only had the powers, regulated in a general way, of an “Oberste Reichsbehoerde” [Supreme Reich Authority], and the practice of those powers was restricted to special cases.

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

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

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

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

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

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

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

There are three so-called troop experiments: the testing of drinking water, concentrated food, and an ointment for burns.

Further, three medical experiments are connected with the defendant Karl Brandt. The hepatitis experiments, which he is said to have suggested, were not carried out. While that research was continued during the following years, Karl Brandt, who is said to have sponsored it particularly, is mentioned by none of the numerous witnesses and experts, and his name is not mentioned in any document. Is it not, therefore, a plausible explanation that Grawitz confused the names?

The second case is the request to hand over 10 prisoners for two days for an experiment not named. This cannot refer to a real medical experiment, for such an experiment cannot be carried out in such a short time with the necessary tests and observations. The speedy return of the experimental subjects indicates that the experiment was not dangerous.

Finally, the defendant Karl Brandt is connected with the phosgene experiments by Bickenbach, which caused the death of four Germans sentenced to death. But precisely here Bickenbach’s affidavit shows that the defendant Karl Brandt was outside the whole framework of the experiment in Himmler’s sphere, and that he was merely approached to mediate. The order came from Himmler. The experiments must have seemed innocuous to the defendant Karl Brandt since Bickenbach wanted to carry them out on himself.

On the other hand, there was the state emergency and the enormous importance of the discovery that the taking of a few urotropin tablets might give the ardently desired protection to all against the expected gas attack and, as the result of the experiment shows, actually did so.

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

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

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

Therefore, it will be sufficient to emphasize that the alleged negligence depends on the existence of a duty of supervision and the right to give orders through other agencies. In every state the spheres of competence are separated, and it is not possible for everyone to interfere in everything on the basis that everyone is responsible for everything.

The prosecution says that the defendant Karl Brandt ought to have used his influence and availed himself of his intimate relations with Hitler to stop the experiments. Even presuming that he was aware of the facts as crimes, his guilt would not be of a legal, but only of a political or moral nature. Until now nobody has been held criminally responsible for the conduct of a superior or a friend; the question of criminal law, however, is the only one the Tribunal has to consider. As a matter of fact this close relationship did not exist. The defendant Karl Brandt was the surgeon who had to be in attendance on Hitler; Dr. Morell, the latter’s personal physician, soon tried to undermine the confidence placed in Karl Brandt so that he was given commissions which removed him further and further from the sphere of his medical activity.

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

If one sums up everything relating to the medical experiments and follows to a large extent the charges of the prosecution, it is an established fact that it is not shown that the defendant Karl Brandt participated in any way in experiments on prisoners of war and foreigners, or that he was cognizant of them. Therefore, no war crime or crime against humanity has been committed, and consequently punishment under Law No. 10 is excluded. I refer in this connection to the legal arguments in my closing brief.

The second problem is euthanasia.

The authorization of 1 September 1939 was issued before the period of the medical experiments, at a time when the defendant Karl Brandt was still closely attached to the Fuehrer’s headquarters and to Hitler as an accompanying physician.

In my closing brief I have explained in detail that the defendant Karl Brandt did not participate in the Action 14 f 13, with the “special treatment” of prisoners in concentration camps, occurrences which were given the name of euthanasia only here in the trial.

Neither did the defendant Karl Brandt take any part in the extermination of Jews in Auschwitz, which again has nothing in common with the idea of euthanasia.

I have further shown that the so-called “wild euthanasia”, which was carried out simultaneously with and immediately after legal euthanasia, was not instigated by Karl Brandt. The stopping of euthanasia in August 1941 has been proved, and therefore that was the end of the defendant Karl Brandt’s duties; for what would have been the meaning of this cessation if, after it, increased activity was to set in? The contacts of Karl Brandt after the cessation have been clarified as being the consequence of his activities connected with evacuation for air protection. Where the name of the defendant Karl Brandt is mentioned otherwise, it obviously serves only as means of information for uninformed people who never saw or heard anything of him themselves.

I shall deal here with euthanasia only to the extent that it is officially dealt with under the ordinance of 1 September 1939. Concerning the “Reich committee”, I refer to my closing brief.

The presentation of evidence has established that the defendant Karl Brandt actually had no “administrative and medical office” from which the whole organization might have been administered. On the contrary, it is a fact that Bouhler declared himself solely responsible for the procedure; this is testified to by unequivocal documents.

Nor has any regulation or instruction become known which was issued by Karl Brandt. Not a single document was signed by him. He made no speeches and conducted no discussions.

But what did he do and what was his duty?

His duty was not to carry out euthanasia; he was only to be informed in special cases in order to be able to report to Hitler. This was in conformity with the existing conditions—his presence at and simultaneous attachment to the Fuehrer’s headquarters, and to Hitler.

Only once was Karl Brandt seen active, and that is in the negotiations with Pastor von Bodelschwingh, which led to the result, amazing for us, that the defendant Karl Brandt won Bodelschwingh’s sympathy, and after the collapse the latter said in a radio interview that Brandt was an idealist but not a criminal.

But the defendant Karl Brandt took note of interrogation forms, he inspected a registrar’s office, and he co-signed the authority for physicians to execute euthanasia.

What could the defendant Karl Brandt learn from the forms?

The prosecution thinks that Jews and foreigners were to be affected in the first instance. The affidavit by the director of the Jewish lunatic asylum, in which all the insane Jews of Germany were concentrated, proves that this was not the case.

The prosecution says that all persons unfit for work were to be killed as “useless eaters”. But it is a fact that even work-houses were requested to give information only about cases of really grave insanity.

What did the defendant Karl Brandt know about the procedure?

He knew that the authorization which was issued was not an order given to the doctor, but only conferred on him the right to act on his own responsibility after the most careful consideration of the patient’s condition. This was a clause inserted in the ordinance of 1 September 1939 on Karl Brandt’s initiative.

The defendant Karl Brandt knew that the specialists, whom he did not know, were chosen by the Ministry of the Interior, and that the experts were eminent men in their special spheres.

The defendant Karl Brandt also knew that the authorities concerned saw no reason to object to the execution of the measure, and that even the chief jurists of the Reich declared the legal foundations to be irreproachable, after having been informed of the facts.

Within this framework the defendant Karl Brandt approved of official euthanasia and supported it.

But the prosecution even calls euthanasia a thousand-fold murder. In their opinion there was no formal law, and it is alleged that the expert Dr. Lammers confirmed this.

Yes, but he also stated that even an informal ordinance was valid. Even an order issued by the Fuehrer had the force of law, as can be clearly seen from the indisputable effects of such orders, in particular in relation to foreigners.

But for the defendant Karl Brandt it is of no importance whether the ordinance of 1 September 1939 was actually valid or not; the only important thing is that he had reason to believe it was valid and that he could rely on this opinion.

German courts have already dealt with cases of the practice of euthanasia; but these cases occurred after the official procedure had been stopped, as at Hadamar, or after persons had been killed who could never have come under the powers conferred by the ordinance, or other crimes were committed.

It should be observed that these sentences always confirm the base motives of the offenders. On the other hand, these courts were concerned with the question of public law only to the extent that they confirm that no formal law was available. In one case the court restricted itself to information given by a member of the prosecution staff in the trial before the International Military Tribunal.

The real objections to euthanasia are not based on a formal point of view, but rather on the same reasons which are advanced against the admissibility of the medical experiments.

Even an insane person of the lowest grade may not be killed it is said. No human being may presume to kill another human being.

But the right to kill in war is accepted in international law, and public law allows the suppression of a revolt by violence.

What prevents the state from ordering killing in the sphere of euthanasia too?

The answer is that there is no motive which might justify an action of this kind.

The economic motive of eliminating “useless eaters” is certainly not sufficient for such measures. Such a motive was never upheld by the defendant Karl Brandt; it was apparently mentioned by others as an accompanying contingency and later taken up by counter propaganda.

The defendant Karl Brandt considered the motive of pity for the patient to be the decisive one. This motive is tacitly accepted for euthanasia on the deathbed, and doctors in all countries increasingly acknowledge it.

In former times the courts were repeatedly concerned with killings committed out of pity, and in sensational trials, juries found offenders not guilty who freed their nearest relatives from the torment of life.

Who would not have the desire to die while in good health rather than to be forced by all the resources of medical science to continue life degraded to an animal’s existence! Only misguided civilization keeps such beings alive; in the normal struggle for existence Nature is more charitable.

But the legislator has hitherto refrained from giving authority to kill in such cases. But he can solve the problem if he wants to. The reasons for his restraint are exactly those which led in this case to the disguising of those measures and to the secrecy observed. There is the fear of base intrigues concerning inheritance, the mental burden of the relatives, and so on. The individual does not want to bear this burden, nor is he able to do so. It can be taken over only by the state, which is independent of the desires of those concerned.

That such is the will of the great majority of those who really come into touch with these problems was shown by the result of the inquiry conducted by Professor Meltzer, which has been offered in evidence. It was carried out by him many years ago in order to obtain an argument against euthanasia and its principal supporters, Binding and Hoche. He obtained the reverse of what he had himself expected as an expert.

But I see a third motive which unconsciously plays an important part; it is the idea of sacrifice.

A lunatic may cause the mental and economic decay of a family and also ruin it morally.

If healthy human beings make great sacrifices for the community and lay down their lives by order of the state, the insane person, if he could arouse himself mentally and make a decision, would choose a similar sacrifice for himself.

Why should not the state be allowed to enact this sacrifice in his case and impose on him what he would want to do himself?

Is the state to be forbidden to carry out such euthanasia until the whole world is a hospital, while the creatures of nature keep unblemished through what is believed to be the brutality of Nature?

The decision as to whether such an order given by the state is admissible or not depends on the conception of the social life of mankind and is, therefore, a political decision.

Neither the defendant Karl Brandt nor anyone else who participated in legalized euthanasia would ever have killed a human being on his own authority, and in the German sentences passed the blameless former life of the persons stigmatized as mass-murderers is always emphasized.

This is a warning to be cautious. Did they really commit brutalities, or were they sentenced only because they were not in a position to swim against the tide of times and to oppose it with their own judgment?

A Christian believing in dogma will turn away in pity from this way of thinking. But if the order to use euthanasia to the desired limited extent was really in such contradiction to the commandment of God that everyone could realize it, then it is incomprehensible why Hitler, who never withdrew from the church, was not excommunicated.

This must remove the burden of guilt which one now wants to pile up. Then humanity would have clearly realized at the time that in this devilish struggle man cannot prevail for God stands for Justice.

If there are offenders there are many co-offenders, and one understands Pastor Niemoeller saying: “We are all guilty.”

This is a moral or a political guilt, but cannot be shifted to a single person as criminal guilt.

I have thus shown the fundamental lines along which the actions of the defendant Karl Brandt have to be judged.

The primary consideration for the judgment of this Tribunal is that no prisoners of war or foreigners were submitted to euthanasia with the knowledge or the desire of the defendant Karl Brandt.

Thus the defendant Karl Brandt cannot be punished under Law No. 10 on this count either. What happened between Germans is not subject to the decision of this Tribunal.

Finally, the defendant Karl Brandt is also charged with having been a member of the SS, an organization which has been declared criminal. Evidence to show that the defendant Karl Brandt knew of a criminal aim of this organization and approved of it must be brought by the prosecution. A reference to the general assertions in these proceedings is not sufficient proof, for precisely here the prosecution cannot prevail with their assertions in regard to Karl Brandt.

As to the details, I refer to the statements made in my closing brief.