Discover more from Doctors' Trial: Never Forget
1947-01-30, #3: Doctors' Trial (early afternoon)
THE MARSHAL: The Tribunal is again in session.
Opening statement on behalf of the Defendant Konrad Schaefer
BY DR. BELCKMANN:
Your Honors, Dr. Belckmann for the defendant Dr. Konrad Schaefer.
The SCHAEFER Case appears to be of a special kind, even to the superficial observer of this trial.
In these proceedings, which have lasted for weeks, the name of SCHAEFER has been mentioned only a few times by the Prosecution. He is alleged by the Prosecution to have participated in only one experiment conducted on concentration camp inmates, in which experiment a drug was tested which was intended to render sea water potable.
The Prosecution alleges that, in spite of this very limited activity, SCHAEFER was participant in the conspiracy which comprises all these defendants.
To prove its thesis of the conspiracy of all the defendants, the Prosecution has presented two points in detail.
The pervasion and corruption of German medical science, primarily the young medical men, by National Socialist ideas, culminating in a disregard for human life which found its expression in the experiments on concentration camp inmates.
The close cooperation of all defendants in various spheres of medicine, primarily in the Army, in the Luftwaffe, and in the SS, which put each defendant in a position to recognize the criminal activity of the others and to contribute his share knowingly.
In this connection I shall prove that, especially in SCHAEFER's case, these prerequisites do not apply:
SCHAEFER has always been an outspoken opponent of National. Socialism and of militarism. It was he who already in 1933 and in the subsequent years as a student and as a young physician opposed the measures which the Prosecutor described so fully on 9 December 1946 (page 100, 101 of the German transcript, and which were intended to make of these young men willing instruments of the National Socialist regime by training them within the organizations of the Party, even at the expense of their scientific achievements.
In spite of extremely strong pressure — which the Prosecution has described very vividly — he refused to join the Party or any other organization, thereby endangering his admission to the examinations. He finally had to give up his position as assistant at a university clinic, although his scientific achievements world have entitled him to a position as lecturer.
Later, too — from 1937 until the outbreak of the war, still more during the war, and also after having been drafted into the Luftwaffe in 1941 — he continued to criticize the existing system and its excesses especially in the field of medicine, and last but not least the experiments on human beings which were conducted in the concentration camps.
How is it to be explained, then, that SCHAEFER held a position in the public health service of the Third Reich (German transcript page 57) But how can the Prosecution contend that the share of each of the 20 physicians — including the defendant SCHAEFER — in the conspiracy and in its execution corresponds most closely to his professional interests and his position within the hierarchy of the Third Reich? (cf. German transcript page 114.)
I shall prove that these contentions of the Prosecution concerning the position of the defendants within the hierarchy of the Third Reich and their close cooperation with each other do not apply in the case of SCHAEFER.
From 1937 until 1945 SCHAEFER hold a position as medical man and chemist and as deputy section chief in private industry, since official positions were not open to him on account of his anti-Nazi convictions. In 1941 he was drafted as a private and after 6 months became Unterarzt in the Luftwaffe, since he was a medical man. An Unterarzt in the German Wehrmacht does not have the rank of an officer. Through an accidental meeting with his former fellow-student BECKER-FREYSENG, he was given the opportunity of entering the Research Institute for Aviation Medicine.
He seized this opportunity immediately, because in this way he was able to continue his activities in private industry, naturally in civilian clothes. He rarely entered the Institute, and he seldom wore a uniform. He knew only a few of the other medical men in aviation. He talked only once to his supreme superior, HIPPKE, and he talked only twice to HIPPKE's successor, SCHROEDER. Such an unimportant person was SCHAEFER! One cannot speak of a position within the hierarchy of the administration and of medicine of the Third Reich.
During the war he held a position like many thousands of other Germans, who were glad to be able to escape the deadly dangers of the war at the front, who had no inner connections with this war and with this system, who even were its radical opponents.
He was given the order to investigate problems arising from distress at sea, particularly the problem of thirst.
He obeyed this order with great satisfaction, because he knew that the solution of this problem would put an end to the tortures of Tantalus suffered by shipwrecked persons all over the world. He set to work with scientific thoroughness, which I shall prove in detail. A study of the entire literature, which took months, enabled him to hold a lecture on thirst and the measures to be taken against it during distress at at see, by order of the Chief of the Medical Inspectorate, at the meeting in Nuernberg in 1942. The lecture contained pure theory and was not a report on experiments on human beings. The Prosecution asserted — the contrary on 12 December 1946, is true (sheet 334 of the German transcript, but the complete Document 401, Prosecution, Exhibit 93, proves that this assertion is false.
The further occupation with this problem brought SCHAEFER to experiments, which were carried out by the IG-Farben. In a scientific cooperation with this firm, a drug was finally found, by which sea water could be made drinkable without any prejudice to health. This result was obtained by many chemical, and pharmacological examinations of the bactericide effects and experiments. No experiments on human beings with this drug were necessary, for SCHAEFER had recognized an the basis of all the other scientific methods of investigation that this drug was absolute innocuous.
The drug was called "Wofatit SW" "IG Drug" or "Schaefer Drug."
It is fundamentally and also in its way of presentation with only very slight differences the same drug which was invented by the American Dr. Ivy and used by the US Armed Forces.
The Schaefer drug was completely ready at the end of 1943, and Schaefer's supreme superior, the Inspector of the Medical Service of the Luftwaffe, intended to introduce it in the German Luftwaffe.
The Technical Office, another branch of the German Luftwaffe, however, opposed its introduction, offering as a reason that there was not enough silve available, which was needed for the production of the drug.
The important men in the Technical Office, Oberstingenieur Christensen and Stabsingenieur Shickler, demanded the introduction of a drug which has been invented by Stabsingenieur of the Air Force Berka. It consisted of glucose, which removed or diminished the salt taste of the sea water without changing the actual salt content.
I shall prove with special emphasis that Schaefer opposed this "Berka drug" as being a fake, ever since the origin of this plan.
He wrote a crushing report on the results of experiments which Oberstarzt von Sirany had conducted with the Berka drug on volunteers, patients in a Luftwaffe hospital, by order of the Technical Office. Schaefer had been ordered by his superiors from the Medical Inspectorate to make this check.
The result of Schaefer's attitude in this respect was that he was suspected of sabotage by the men of the Technical Office and by the officers of the Luftwaffe.
Schaefer know very well what this accusation meant in the Third Reich during the fifth year of war. He knew of other instances in which medical men had been persecuted by the RSHA, that is, by the Gestapo, only on account of their diverging scientific opinions on subjects of vital importance for the war.
But nevertheless he explains his opinion of the senselessness of the Berka method also at the conferences of 19 and 20 May, during which it is proposed that this method be tested on, concentration camp inmates. As a final warning he states that with the Berka method death sets in on the 12th day at latest.
This was all he could do under the circumstances, not being an officer, but the least important person among the brilliant uniforms of the 13 high ranking officers.
At these conferences Schaefer makes no "resolutions." This is impossible in the Army. The top-ranking chiefs of offices present "order" and "command". But the defendant Schaefer is not even ordered to conduct experiments on concentration camp inmates. He is net even assigned to the commission which had been appointed to determine the conditions for the experiments, because he is known to be an opponent of the entire enterprise.
Another chance for preventing these — in Schaefer's opinion completely pointless — experiments on human beings with the Berka drug, whether in the concentration camp or in the Luftwaffe hospital, passes by. On 25 May 1944 the world-famed internist professor Eppinger from Vienna declares that he does not consider entirely wrong Berka's idea that his drug would "sluice" the sea water through the human body without any injury, which Schaefer had hitherto considered absolutely absurd. Three more professors, outstanding medical men, shared the opinion of professor Eppinger.
Thus Schaefer lost one mere medical pretext to declare himself still more openly against the performance of those experiments.
No law in the world can demand of Schaefer more than he did, if one appreciates rightly and with understanding the general circumstances in Hitlers Germany and Schaefer's special situation on account of his official rank. Now I already put the question why none of the participants in the conference of 19 and 20 May 1944, who in contrast to Schaefer kept silence, are present here in the defendants' dock, with the exception of Becker-Freyseng, and why just the inventor of a method which solves a very ancient problem of humanity is accused.
In none of the conferences mentioned in the documents of the Prosecution in which Schaefer took part, was it proposed or ordered that the "Schaefer drug" be tested on concentration camp inmates. Only for such an act could Schaefer have been held responsible. But he would never have shunned this medical responsibility, in view of the good quality of his drug, although he never have approved the use of concentration camp inmates.
The experiments with the Berka drug, which he is not responsible for ordering, were carried out without his cooperation.
He therefore cannot be charged for having listened to the lecture of Professor Beiglbock, which fully revealed the uselessness of the Berka method.
Your Honors, I hereby ask you to consider the Prosecution documents and the speech of the Prosecutor, before listening to my case, and to take into consideration my statements concerning the Prosecution documents.
This examination alone will put you in a position to realize that the Defendant Schaefer is not guilty. In accordance with the practice of American and British courts in penal cases, I request as a measure of precaution that the trial of the defendant Schaefer be discontinued, without the submission of any further evidence.
Opening statement on behalf of the Defendant Waldemar Hoven
BY DR. GAWLIK:
The defendant Hoven has been accused on all four counts of the indictment.
Regarding Count i of the Indictment, common plan or conspiracy: In the first place, the fact of a conspiracy requires a common plan or agreement between at least two persons. The prosecution should, therefore, have stated: 1, when; 2, where; 3, between what persons this common plan or this common agreement was reached; and 4, what the substance was of this common plan or agreement.
The prosecution should have made a particular point of stating that this plan or agreement aimed at the committing of those war crimes and crimes against humanity, which are the subject of these proceedings. Furthermore, the prosecution should have proved that the defendant Hoven took part in such an agreement.
Now that the prosecution has concluded its presentation the following must be stated: the prosecution has no reason whatever for assuming and has produced no proof whatever that a plan of this kind ever existed or that the defendant Hoven took part in it.
I therefore ask that the defendant Hoven be declared not guilty under Count I of the indictment.
The opinion expressed here this morning gives me occasion to add a few words at this point. I am of the opinion that the Tribunal does not need any instruction on how these proceedings should be conducted most efficiently.
I shall therefore merely comment on the question of whether such an application is legally admissible or not.
According to German penal law the Court can at any time refrain from hearing defense witnesses if it is of the opinion that the evidence presented by the Prosecution is not adequate.
As far as I know, and I make these statements with a certain reservation because I have foreign literature available only to a limited extent, this principle applies under the law of all states. This principle also arises from the laws of logic, for what purpose would there be in presenting defense witnesses on the count of conspiracy under the present difficulties of bringing them to Nuremberg and of taking up the time of the Tribunal by their examination if the Court is already of the opinion that what the Prosecution has presented is insufficient to prove the participation of the defendant Hoven in a conspiracy?
I shall now continue. If this application is refused, I shall prove: a, that the defendant Hoven did not take part in such plan; b, that he did not even know his co-defendants, with the exception of Mrugowsky, until the beginning of the present trial; and c, that he had only met the defendant Mrugowsky once, unofficially, and that at this meeting there was no discussion of an agreement for the commitment of war crimes and crimes against humanity.
Regarding Counts 2 and 3 of the Indictment (war crimes and crimes against humanity):
Under these Counts the defendant Hoven is accused of having carried out on inmates of the concentration camp Buchenwald: a, typhus experiments, and b, the euthanasia program.
As an introduction I should like to point out the following in order to clarify my presentation of evidence:
The fact that, the prosecution has proved that a crime has been committed does not suffice. Law No. 10 is only applicable if these crimes were committed on citizens of the United Nations. I gather from the evidence so far submitted by the Prosecution, and especially from the witnesses questioned by the prosecution, that they also are of this view.
I shall now deal with the individual war crimes and crimes against humanity with which the defendant Hoven is charged, and come first to the question whether there is a basis for the assumption that the defendant Hoven participated in the typhus experiments a punishable act according to Law No. 10.
It cannot be doubted that between January 1942 and the end of 1944 typhus experiments were carried out on inmates in the concentration camp Buchenwald.
The defendant Hoven was arrested in September 1943 and was, until March 1945, a prisoner in the concentration camp Buchenwald. This is clear from the evidence presented by the prosecution. It is therefore of decisive importance whether and to what extent the defendant Hoven actually took part in the typhus experiments January 1942 and August 1943. The prosecution has stated correctly that it was not the defendant Hoven who was supervisor of the department for typhus and virus research at the Hygiene Institute of the Waffs SS which was established at the Buchenwald Concentration Camp, but that this was the late Dr. Ding-Schuler.
The activity of which the defendant is accused allegedly consists in:
a) having been Dr. Ding's deputy
b) having selected prisoners who were used as human experimental subjects in the typhus experiments.
Re point a) As has been correctly submitted by the Prosecution on the strength of Dr. Ding'd diary — Doc. NO.265, Document, Book 12, pages 36 to 56 of the German, pages 38 to 53 of the English text — the activity of the defendant Hoven as Dr. Ding's deputy has to be broken down into:
1) his work as deputy in the experimental station Block 46;
2) his work as deputy in Block 50.
The evidence of the prosecution has shown beyond any doubt that the experiments were carried out only in Block 46. In Block 50 only the typhus vaccine for the German soldiers at the front was manufactured. This is shown by the testimony of the witness Dr. Kogon, page 1192 of the German transcript.
Only the performance of the typhus experiments in Block 46, However, can be considered a criminal activity in accordance with Law No. 10. The manufacture of typhus vaccine in Block 50 is beyond any doubt neither a war crime nor a crime against humanity.
Only in Block 50, the section where the vaccine was manufactured, was the defendant Hoven Dr. Ding's permanent deputy. This is shown indubitably by the above mentioned Document NO-265, Document Book 12, pages 38 to 53 of the English and pages 36 to 56 of the German text, particularly by page 41 of the English and the same page of the German text. There is the following entry on 9 January 1943:
By order of the surgeon general of the Waffen SS, SS Gruppenfuehrer and major General of the Waffen SS, Dr. Genzken, the hitherto existing typhus research station at the concentration camp Buchenwald becomes the "Department for typhus and Virus Research." The head of the department will be SS Sturmbannfuehrer Dr. Ding.
During his absence the station medical officer of the Waffen SS Weimer, SS Huptsturmfuehrer Hoven, will supervise the production of vaccines.
I draw the attention of the Tribunal especially to the expression "production of vaccines."
The defendant Hoven was Dr. Ding's deputy in the experimental station only temporarily, during an illness of Dr. Ding's. This is to be seen from the entries on p. 37 and 38 of the German Document Book 12, and p. 38 and 39 of the English Document Book 12.
According to these entries, Dr. Ding vaccinated 135 prisoners in the period from 6 January to 1 February 1942, and afterwards on 3 March 1942, infected these vaccinated prisoners and 10 control persons with culture virus. On 17 March 1942 Dr. Ding, who had infected himself, fell ill with typhus. During this illness the defendant Hoven acted as his deputy, according to the entry in the diary on 17 March 1942. The next infection took place on 15 October 1942 and was made by Dr. Ding. From the entries in the diary one can see without doubt that in the period from March to October 1942, especially during the time when the defendant Hoven acted as deputy for Dr. Ding, no infection were made.
These entries are corroborated by the testimony of the witnesses examined by the prosecution, who stated that the defendant Hoven did not perform any experiments. Witness Dr. Kogon declared that the defendant Hoven could not begin any experimental series on his own initiative, but that only Dr. Ding, as head of the experimental station, could make decisions in this matter (page 1210 of the German transcript). The witness Kirchheimer stated, corroborating the testimony of the witness Dr. Kogon, that all the typhus experiments were begun by Dr. Ding, (page 1360 of the German transcript). Only Dr. Ding infected the experimental subjects. The defendant Hoven, as the witness Kirchheimer explicitly stated, was not in a position to prevent the experiments after the experimental persons had been infected by Dr. Ding. According to Kirchheimer's statements, the defendant Hoven never had a vaccination needle in his hands, and never made any injections on the experimental persons (page 1355 of the German transcript).
Of decisive importance in this regard should be the further testimony of the witness Kirchheimer that during a period of 1¼ years, namely from the end of 1941 until the beginning of 1943, the defendant Hoven entered the ward of Block 46 only twice. The witness hereby left room for the possibility that the defendant Hoven was only visiting the Jewish prisoner Cohn, who was employee in the ward as chief male nurse and whose life the defendant Hoven had saved (page 1355/6 of the German transcript).
If the defendant Hoven had been active in Block 46 as Dr. Ding's deputy, then he would have had to enter the ward more than twice during 1 ¼ years.
So far as the infection through typhus-bearing lice in November 1942 is concerned, the following facts are clear from Dr. Ding's diary — Document NO265, page 36 of the German and page 38 of the English Document Book 12.
1. Through the infection by lice no persons died. The test persons did not even fall sick, for according to diary entry of 4 January 1943 five persons showed only atypical illnesses of short duration, i.e. illnesses which had no causal relation to the infection through lice (Document Book 12, page 40 of the German and page 41 of the English.)
2) Lice were sent to Buchenwald only twice. Both shipments were destroyed (page 39 of the German, page 40 of the English Document Book 12).
Regarding this the witness Dr. Kogon testified that it was the defendant Hoven who ordered the destruction of the lice (page 1203 of the German transcript). The witness Kirchheimer has confirmed these statements by Dr. Kogon (page 1351, 1353 of the German transcript).
It will be proved that the defendant Hoven: a) did not order or carry out any typhus experiments in Block 46 whatsoever;
b) that he consented to Dr. Ding's appointment of him as deputy for Block 50, and for a short time also for Block 46, only upon request of the underground camp government. This was done in order to enable him to accommodate political prisoners who were endangered, especially non-German subjects, in the wares 46 and 50, and it will be proved that his activities as deputy consisted only in this assistance to the political prisoners.
As far as the selection of the persons for typhus experiments is concerned the testimony of the witness Dr. Kogon proved that the defendant Hoven did not select all the test persons for the typhus experiments, (in this connection I refer to page 1197 of the German transcript). According to the transcript, the method of selecting the test persons differed at different times. Volunteers were used in the first two experiments. Later on the test persons were picked by the a) camp physician or SS camp commandant, b) National Criminal Police Bureau (Kripo). Towards the end transports arrived from other camps for these typhus experiments.
Accordingly, the defendant Hoven picked only a small number of the test persons.
I shall now prove:
a) that the defendant Hoven chose only German habitual criminals for the experiments; and furthermore, b) that the defendant Hoven took over the selection of prisoners on the express request of the underground camp government in order to prevent others than German habitual criminals from being used in these experiments.
As to the further charge against the defendant Hoven that he took part in the execution of the euthanasia program, it has already been proven by the testimony of the witness Dr. Mennecke that the defendant Hoven had no part in it whatsoever. Neither did the defendant Hoven select prisoners for euthanasia, nor did he give other orders for the carrying out of the euthanasia program.
According to the testimony of the witness Dr. Mennecke, prisoners of the concentration camp Buchenwald were selected for the execution of the euthanasia program in the years 1940 and 1941 by a medical commission which came from Berlin and of which Dr. Mennecke was a member.
This commission filled out its own reports for every prisoner who was to be killed. Those reports were sent to the Reich Ministry of the Interior, where they were examined by three experts independently of one another (page 1880 of the German transcript of 17 January 1947). After the experts had given their decisions on the basis of the reports, another commission passed final judgment. On the basis of this final judgment the transfer of the persons intended for the euthanasia program to the euthanasia institutions was ordered by Berlin (page 1881 of the German transcript). The Bernburg asylum was decided upon as the one to be used as the euthanasia institution for the prisoners from Buchenwald Concentration Camp.
It is therefore incorrect when the prosecution asserts:
The defendant Hoven as chief physician of Buchenwald Concentration Camp took part in the euthanasia program and personally ordered the transfer of at least 300 to 400 Jewish prisoners of various nationalities to the Bernburg euthanasia station where they were killed (page 107 of the German and page 59 of the English transcript of 9 December 1946). The high Tribunal will remember the chart which was explained in this court by the prosecution. This chart showed the offices that took part in the euthanasia program. The defendant Hoven did not even appear on that chart. These explanations, in connection with the testimony of the witness Dr. Mennecke, show without a doubt that the defendant Hoven could not have given the orders as asserted by the prosecution. The transfer was ordered by Berlin offices after the expert and the final commission had given their decision. The witness Dr. Mennecke testified in addition that the defendant Hoven did not take part in selecting the prisoners for the euthanasia program. I refer in this matter to page 1930 of the German transcript. Dr. Mennecke also testified that the defendant Hoven did not bring the prisoners intended for the euthanasia program before the commission (page 1938 of the German transcript).
According to the testimony of the witness Dr. Mennecke, the entire activity of the defendant Hoven in the program being carried out by Dr. Mennecke consisted in greeting the witness Mennecke in 1941.
He did not even see the defendant Hoven during the previous visit of the witness Dr. Mennecke at Buchenwald in 1940. This is understandable since, according to Document NO-591, submitted by the prosecution, defendant Hoven was not yet working in the concentration camp at Buchenwald in 1940.
Thus it may be accepted as proved by evidence submitted by the prosecution that the defendant Hoven did not participate in the euthanasia program.
Beyond that, on the basis of testimony given by the witnesses Dr. Kogon and Kirchheimer it is to be accepted as proven that the defendant Hoven, in collaboration with the underground camp government at Buchenwald, prevented the execution of euthanasia program 14 f 13 by substituting counter-action 13 f 14. That persons, designated for euthanasia by Dr. Mennecke, especially the 1200 Jewish prisoners, were not transported to Bernburg is especially due to the intervention of the defendant Hoven (pages 1238, 1292, and 1295 of the German transcript).
I therefore request that the defendant Hoven be acquitted of the charge that he participated in the execution of the euthanasia program.
In the event that this application be rejected, I shall submit further proof that the defendant Hoven did not participate in the execution of the euthanasia, program, and that, moreover, he took counter-measures to keep this program from being into effect.
On the basis of the evidence submitted by the prosecution thus far only the following facts stand:
The defendant Hoven participated in the killing of prisoners. The killing of those prisoners, however, was in no wise connected with the euthanasia program.
With regard to this I shall prove that:
the number of these killings was considerably lower then the witness Roemhild, for example, stated;
that these persons with out exception, were not political prisoners and especially not foreigners, and, above all not subject to the United Nations, but exclusively German habitual criminals who acted as informers for the SS camp management and the Secret Police;
that all these killings were carried out at the instigation of the underground camp government;
that by each killing the lives of a great number of persons were saved, i.e. of political prisoners and Jews, and particularly of subjects of the United Nations.
that there was no other way to save these endangered persons than to kill these SS and Secret Police informers.
In order to prove this I do not have to refute the evidence submitted by the prosecution; and I do not need to present anything that has not been discussed already in this room. The witnesses whom I shall call and the documents I shall submit will supplement the testimony already given by the witnesses far the prosecution. I shall prove that all the killings in which the defendant Hoven took part were exactly analogous to the case Kushnir Kushnarew described by the witness Dr. Kogon. Dr. Kogon, a person with high C Christion ethical and moral concepts, a witness far superior to the average prosecution witnesses, a witness whose truthfulness cannot be doubted in the slightest, expressed the following opinion about the killing of Kushnir Kushnarew: "I personally as a convinced Christion do not deny these people the right to have killed indisputably dangerous persons in this emergency who in collaboration with the SS endanger the lives of individuals or a large number of persons in the camp." (Page 1298 of the German transcript.)
The Tribunal, however, would have no true picture of the defendant Hoven if I should fail to prove that the defendant Hoven had saved numerous political prisoners from certain death and helped many of them to find freedom, particularly non-Germans, Jews, and subjects of the United Nations, under peril of his own life. This concerns among others numerous non-German persons endangered by the Night and Fog (Nacht und Nebel) Decree.
Regarding Point 4 of the Indictment (membership in organizations declared criminal by the IMT.
According to the decision of the IMT persons are not to he charged with membership in SS organizations designated as criminal, if a) they withdrew before 1 September 1939; b) the state had placed them in the ranks of the SS in such a way as to leave them no choice whatever in the matter (page 16527 of the German transcript of 30 September 1946.)
On the basis of this decision of the IMT I shall prove that the defendant Hoven received an order on 26 August 1939 to report for active duty with the Waffen SS and thus: a) left the Allgemeine SS to which he had belonged since 1934; b) was pressed into the ranks of the Waffen SS, compulsorily and against his will.
I shall prove in particular that the order to report for active duty with the Waffen SS had the same legal force as the order to report for active duty with the armed forces, and that it was just as impossible for a member of the Waffen SS to resign during the war as it was for a member of the armed forces.
Opening statement on behalf of the Defendant Wilhelm Beiglboeck
BY DR. STEINBAUER:
Members of the Court:
In modest and simple language, but I hope none the less effectively, I am going to explain to you in a characteristic outline the principles in accordance with which I am intending to put forward the arguments in favor of my follow countryman, the defendant, Dr. Wilhelm Beiglboeck, university professor in Vienna.
In the big trial against Goering and others, I have had already an opportunity of reliving the growth and the disappearance of Adolf Hitler's Reich which was finally marked by tyranny, enslavement, war and hunger, terror and mass murder. In this trial we again had to hear about bloodshed, cruelties, sadism, assassination and mass murder. Both trials have one thing in common, namely, that the victims were chiefly non "behind barbed wire" whose normal fate already was to be deprived of their freedom, to have, to serve as slaves, to suffer hunger, long, drawn-out sickness and early death. Public opinion, being almost crushed by the worries for their daily broad, follows the War Crime Trials which continue one after another with an ever-decreasing interest and views in particular the so-called doctors' trials, as the empty galleries show, with reluctance and inner reserve.
This is due to the fact that the men who are here indicted should not open wounds but heal them, and that they should not kill but prevent death. But this circumstance does not only involve the danger of biased publicity but also that we, the guardians and servants of justice, unconsciously become hard, thus unjust, in view of the strongly optical effects of the facts with which we are here concerned unless we pay the greatest attention also to the so-called inner facts. For this reason I am going to begin by replying in my defense to the question: who is this Dr. Beiglboeck?
As the son of a country doctor, he had personal experience from the days of his early childhood of the joys and sufferings of the medical profession and chose out of idealism the occupation of a doctor as his life's work. I am going to prove to you by questioning the defendant himself, by submitting documents, in particular certificates from his teachers, by presenting to you the long list of his works, that the Prosecutor was not wrong when he said of Beiglboeck:
"that he, although still young in years, is, nevertheless, known for possessing remarkable scientific aptitudes." Beiglboeck had the good fortune of meeting among his teachers two people whose names are immortal in the history of medicine. They are the two internists, Franz Chvostek, head of the Third Medical Clinic at Vienna, and Hans Eppinger, head of the First Medical Clinic at Vienna. Chvostek emphasizes at the conclusion of his certificate not only the scientific abilities, the industry of hie student, but, above all, his humane attitude towards the patients entrusted to his care. Eppinger, the famous internist who counted the most prominent statesman like Marshal Stalin among his patients, calls Beiglboeck in his certificate his most capable student. Chvostek and Eppinger are already dead, and the two certificates originate from a period before the experiments which are here under review, therefore, must be considered as correct and unobjectionable documents.
I can, therefore, sum up my remarks about the personality of the defendant by saying that the words apply which Euripides, the great Greek poet of tragedies says about Anaxagoras, the philosopher:
Happy is the man who achieved knowledge For the benefit of research:
Never he feels the urge to make his neighbor suffer, Nor is he driven to do wrong for such motives!
II. Order from Above:
My second line of argument is going to be the reply to the question as to how it is possible that a man of such high qualities finds himself in the defendants' dock as an alleged criminal. The same question was asked by the Heidelberg psychiatrist, Dr. Mittscherlich, the head of the German Doctors' Delegation, when he wrote:
In the defendants' dock there are side by side with scientifically meaningless doctors experts of great reputation. From the prison witnesses with prominent names are brought in. Two famous scientists have committed suicide in connection with this trial. These events prove that in passing judgment on the events, considerations of a purely legal and criminalistic nature will not suffice; that, on the contrary, the question must be asked how it could happen that such men found themselves in the defendants' dock.
I am not going to reply to the question of the ethical motives as a defense counsel until I deliver my final plea, and I am going to limit myself at this stage to the purely legal aspect of the subject. The reply is: Beiglboeck was forced to undertake the sea-water experiments for which he is indicted and has carried them out against his will, acting upon "an order from above" as a soldier. I am, of course, well aware of the fact that the Charter of August, 1945 and Control Council Law 10, which is the more direct basis of this trial, provides in Article 4, Paragraph 2, that the fact that a man acted under the order of his superior does not relieve him of his responsibility, but that this fact may be considered as an attenuating circumstance. This, however, merely means that reference to "an order from above" alone is not sufficient to exonerate a defendant but that this provision is by no means intended to render it impossible to invoke generally valid principles of law such as the exclusion of guilt on the grounds of fear and coercion. Now we, fortunately, have a very remarkable precedent in this question, namely, the verdict of the International Military Tribunal of Nurnberg which declares in respect of Article 8 of the Charter:
that a soldier was ordered to kill or torture in violation of the International Law of War has never been recognized as a defense to such acts of brutality, though the order may be urged in mitigation of the punishment. The true test which is found in varying degrees in the Criminal Law of most nations is not the existence of the order but whether a morale choice was in fact possible.
I shall prove to you beyond doubt by questioning the defendant himself, by producing evidence from superiors and colleagues, by submitting letters written by the defendant during the critical period that the defendant did everything in his power to disassociate himself from the experiments which were contrary to his high conception of the profession of a doctor.
III. The Indictment:
A.) THE CONSPIRACY:
Although it is contrary to the natural sense of justice to render an one responsible under criminal law for offenses committed by other persons, the indictment has, nevertheless, attempted to render the defendant, Beiglboeck, responsible together with the other defendants on all counts. In my final plea 2275 I shall not only Coal from the legal point of view with the question of the "order from above," but I shall also express an opinion on the problem of the legal character of the so-called conspiracy.
At this stage of the proceedings I shall deal only very briefly with the legal aspects saying that the Prosecutor had no justification at all in this trial to use the argument of conspiracy since the most important element, namely, the legal foundation is lacking: if we turn to 'Control Council Law 10 for a moment, we find that only participation in a common design or a conspiracy in connection with a crime against peace is punishable (Article 2,1a). For this reason I am not going to say one word about the other experiments, although it would certainly be tempting to express an opinion as a jurist on the question of Euthanasia. At any rate, one this clearly results from the documents, Exhibits No.129 to 137 submitted by the Prosecution: that the defendant, Beiglboeck, has had nothing to do with the planning of the allowed crimes. I am going to prove by questioning him and his co-defendants that he knew only two of the so-called conspirators. Those were Handloser, who once gave a military medical lecture in Vienna a long time before the war, and Schraoder whom he knew as his supreme superior just as any soldier knows the names of his generals without ever having had any closer associations with them. Beigleboeck subsequently met Becker-Freyseng and Schaefer. All he can be indicted for from the point of view of criminal law, therefore, is his cooperation in the execution of these experiments and this loads me to the next point of the proceedings:
B.) The Criminal Character of the Experiments in General:
1.) The Prosecution considers experiments as War crimes.
A more prima facie consideration of the Prosecution documents reveals that there can never be any question of war crimes for the simple reason that such war crimes according to Article 11b of Control Council Law 10 can only be committed in respect of nationals of allied countries, and the Prosecution have utterly failed to present any proof of this to the Tribunal. I may, perhaps, remind you in this connection of the SOS call addressed by the assistant Prosecutor to the witness, Vieweg: "Of what nationality were the inmates which were used as subjects for sea-water experiments?" and he replied, "I am unable to answer this!" (Page 473 of the German record). The witness, Vieweg, also testified that the subjects of the experiments were without exception German-speaking gypsies. I shall, therefore, not utter a single word about war crimes at this stage and I am now turning to the question as to whether the sea-water experiments represent so-called crimes against humanity. Control Council Law 10 gives no definition but contents itself with citing examples like murder, rape, and other cases of inhuman treatment of the civilian population.
It is an old experience of law that the prosecutor speaks louder and more emphatically whenever the facts as such furnish only little proof. Therefore, the chief prosecutor said comparatively little about the mass murders which have shocked the civilized world because they snake for themselves, but he has said relatively much about sea-water experiments. I shall, therefore, deal in my arguments of proof in the first place with:
the character of the experiments
the manner of their execution.
As I am going to prove to you by questioning the defendant himself, by producing witnesses and experts, the sea-water experiments which had been prescribed to my client from the outset up to the smallest details and placed under a subsequent check were experiments which could be stopped at any moment. In the same way I am going to prove to you that Beiglboeck, at any rate, actually always did interrupt these experiments early enough to render a damage to the subjects' health quite impossible. A glass of water or a completely harmless injection was sufficient to restore to the subject his full efficiency.
In his opening speech General Taylor said, "The experiments have produced nothing that could be utilized for civilized medicine" (page 119 of the German record). I must very definitely contradict this conception. So long as there are seafaring nations, there exists also the wish, and it has always been an aim, which it was worthwhile to pursue, to render sea water, which is an element available in such large quantities, serviceable to humanity, in other words, to render it drinkable to save men in distress at sea, in particular in times of war, sailors and airmen, is truly serving humanity.
I shall, therefore, prove to you that other scientists of the Allies before Schaefer and Berka have attempted to solve the problem of rendering sea water drinkable. I shall submit to you research work on this point made by the Englishman, A. Parker and W.S.S. Ladell, and of the Ameri can, Elkinton, from which you may see that prominent scientists of the Allies have been engaged in studying in the service of humanity the same problem which is now being used to accuse Beiglboeck of a crime. May I also in this connection point out that it will always be one of the achievements of American science that an American professor, Andruss Ivy, was able to bring the same problem in a more perfect way near to its final solution a long time before the German Schaefer tackled it.
One may will turn with horror from the experiments which are the subject of this indictment, such as those performed by the sadist, Dr. Rascher; but one thing will clearly result from the submission of evidence, namely, that the chief prosecutor is wrong when he raises the collective suspicion in front of world public opinion by declaring that none of the experiments with which the indicted physicians are charged has furnished a contribution to civilization and humanity.
I now propose to turn to the last point of my statement considering the criminal character, namely, the manner in which these experiments were carried out. The chief prosecutor has also dealt with this aspect in his opening speech. He mentioned in particular the sea water experiments as a particularly striking example when he said, "Nothing more terrible than a piece of gelatin, a somewhat previous filter, and some salt water would have given the German Wehrmacht within a few hours the reply to the question and a review. If they had had to pay the small price of two dollars for each subject, the same price which American scientists must cry for a cat, they might have considered the matter more carefully and might not have created a big organization and performed experiments on forty-two men who were tortured." Now, I have the greatest respect for the chief prosecutor who proved himself to be an eminent lawyer, an expert on military matters in his great speech against the General Staff, but even he should submit to the principle that it should be left to the competent experts to give replies on special questions of detail.
Document Exhibit Number 132, report of the technical office of the Air Force to the Reichsfuehrer SS, now shows that two methods for rendering sea water drinkable were under discussion. The method invented by Schaefer, which for the mere setting up of the manufacturing plant required two hundred tons of iron and caused an expense of two hundred fifty thousand Reichsmarks, requiring up to three tons of pure silver monthly for the production process, made this method practically impossible in view of the raw material shortage in the German war machine. On the other hand the Berka method required no special manufacturing Plant and no bottle-neck raw materials and thus offered the possibility of speedy introduction by the Luftwaffe and the navy.
As is shown by the Vienna police record (Exhibits Lumber 137, 138, and 139) the Berka method was based on the not unfavorable preliminary experiments carried out by Colonel Sirany. Although this method opened up only negligible prospects of effectiveness, in smite of all the doubts expressed by the medical profession, even such small profit could not be- turned down with sufficient certainty in war at the time when a great nation was fighting for its existence. This also led an internationally recognized scientist like the clinical physician Eppinger to favor the re-examination of the two methods. I shall prove this by the hearing of the defendant and by evidence which the famous pharmacologist of Berlin University, Dr. Huebner, will give. As has already been mentioned, the experimental procedure had been prescribed to my client up to the smallest details. It will further be shown by the above evidence that the performance of these experiments on human subjects, which are in themselves quite harmless, is absolutely justified. The penal lawyer, however, is also interested in the even more important question as to who the subjects were on whom these experiments were carried out. I shall prove by the hearing of the defendant and by witnesses that in the first place, according to Eppinger's proposal, these experiments were to be performed, in his own clinic or in military hospitals and that this proposal was rejected because of the military emergency and further that my client — and this I shall also prove — was explicitly assured that the subjects on which these experiments were performed were volunteers.
In forming an opinion on this question, it will be impossible to neglect the fact that Beiglboeck, as will be proved by his defense, was personally and subjectively convinced that he was dealing with voluntary subjects for his experiments. Beiglboeck had been assigned to combat units in the operation zone while the other experiments were carried on.
The concentration camp and its methods were absolutely unknown to him, and they have come to his horrified knowledge only in the course of this trial. At Dachau they had deliberately kept him apart from everything. And, finally, I am also happy to show with the help of original notes made by the medical assistants in these concentration camp experiments which have been found and by affidavits made by these same persons that Beiglbeock carried out these experiments which he had been ordered against his will as a soldier to perform after experimenting on himself and in accordance with the rules and precautions of medical science.
These documents when examined by experts will show beyond doubt that the experiments had no lasting damaging effects and caused no death among the subjects. They will objectively refute the contradictory evidence of the prosecution witnesses who gathered their knowledge from hearsay.
From this it must be concluded, however, that there can be no question of crimes against humanity either. In conclusion I can therefore say that if the evidence which I shall produce only yield half of what can be expected, the whole structure of charges erected by the prosecution on the subject of sea-water experiments will collapse like a house of cards and give effect to my submission to acquit my client, Prof. Dr. Bieglbeock. I should be happy about this because I would thereby have contributed for my part to preserving an eminent physician and man for my country which needs every man for its reconstruction; and I would furthermore have proved that scientific research and the physician in the more direct sense are not exclusive of each other but that they can well be a synthesis in the service of humanity and for the benefit of suffering mankind.
Opening statement on behalf of the Defendant Adolf Pokorny
BY DR. KARL HOFFMAN:
Mr. President, and Your Honors:
The Prosecution has submitted only a single document against Dr. Adolf POKORNY, written by himself. This is his letter to HIM LED. dated October 1941 — Document NO-35, Exhibit No.142. The other documents which the Prosecution has submitted in this case are outwardly in no connection with the defendant Dr. POKORNY. They even, as Document NO-39, Exhibit No. 153 and the following shows, start a whole new causal series, in which the suggestion of the defendant Dr. POKORNY is overshadowed by the suggestion made by such a powerful agency as the deputy Gauleiter in Niederdonau.
The defendant will now take the witness stand and give the reasons which led to his letter — Exhibit No.1942. He will point out that as a physician and a person interested in Botany he was convinced, after studying the publications of Dr. MADAUS and Dr. KOCH, that the plant caladium, from the medical point of view, does not have a specifically sterilizing effect, and that, from the botanical point of view, a plant indigenous to North America cannot be grown in Germany on such a large scale that it would be available in large enough quantities for sterilization. He will explain why in his letter he said exactly the opposite of what in his opinion was the truth. He will refer to a report which he received, that sterilization by operation was to be carried out on a large scale, but that it might be postponed if there should be any possibility of carrying out such sterilization by means of a drug. The defendant Dr. POKORNY will state that it was his intention to deceive by praising such a drug and thus to postpone the sterilization by operation as long as possible.
The Prosecution has already indicated that it does not propose to acknowledge such an argument. (P. 557 of the German transcript). The defendant Dr. POKORNY, however, will call witnesses to prove that he mentioned these considerations when he wrote his letter, and that he has not just invented them now. The defendant Dr. POKORNY will, in addition, reveal what the Prosecution could not present, the fact that he received an answer to his letter and that he in turn answered once more, so that in all the crimes with which he is charged his active participation involved only letters.
The defense will show that HIMMLER's efforts to produce a sterilization drug from caladium were unsuccessful. The Witnesses to be examined on this point are the responsible men of the MADAUS Firm in Dresden. The chemist of the firm will discuss the analysis and synthesis of a caladium juice. The botanist will testify to the question of growing the caladium plant in the hothouse. Finally, Dr. KOCH, who has already been mentioned several times in the course of this trial, the medical director of the MADAUS Firm, will appear as a witness.
Dr. KOCH will be asked by the defense to what extent he himself believes that the scientific assertion which he made, that caladium can be used to sterilize a human being, is true. He will also be asked by the defense whether it is at all possible in practice to produce enough caladium to justify even thinking of poisoning by caladium. Finally, he will also be asked to testify, what progress the caladium experiments which HIMMLER had ordered had made by the end of the war. It will then be shown that the caladium experiments were, at the end of the war, still in the stage of animal experiments and had not yet led to any usable result. If the witnesses from the MADAUS Firm in Dresden should in this connection not seem to be disinterested witnesses, Instructor (Dr. JUNG of the Pharmacological Institute of the University of Wuerzburg, who has been called by the defense as an expert, will discuss objectively the scientific value of Dr. MADAUS' and Dr. KOCH's thesis of sterilization with caladium. Moreover, he will state specifically whether caladium is capable of sterilizing a human being at all. He will finally state how high the general scientific value of drugs produced by the MADAUS Firm is and what German physicians think in general of the preparations which the MADAUS Firm has produced. Dr. JUNG will say in this connection that it is his opinion that German medical men know from experience that publications and drugs of the MADAUS Firm do not have absolute scientific validity, because it must be considered that this is a firm whose aim it is also to sell the drugs which it produces. Finally, the defense will call witnesses who will testify to the reputation, the political attitude, and other conduct of the defendant Dr. POKORNY during his civilian activity up to 1942 as well as during his period of military service. Evidence as to Dr. POKORNY's attitude will furthermore be given by numerous affidavits which will appear in the document book.
DR. HOFFMAN: The opening statements have now been concluded.
MR. McHANEY: If the Tribunal pleases, the Prosecution has several comments to make concerning certain questions which have been raised by the opening statements of the Defense Counsel to the Tribunal. Does the Tribunal wish to adjourn prior to these remarks for the afternoon recess?
THE PRESIDENT: What are the nature of the comments the Prosecution desires to make and how long will it take to make them?
MR. McHANEY: They concern briefly the motions and the nature of the motions to dismiss certain paragraphs of the Indictment as contained in a number of the opening statements, as well as the attack on Count 1 of the Indictment; that is to say, the Count which charges conspiracy to commit war crimes and crimes against humanity.
The Prosecution, of course, is not prepared at this time to make any argument on any of these points, but I think it would be well if we could reach some agreement as to the manner in which these questions are to be settled. In other words, the Prosecution would look with disfavor upon the procedure now, to settle each and every motion to dismiss prior to the time the Defense Counsel began to put in evidence on behalf of their defendants. We would prefer, if it is suitable with the Tribunal, and with the Defense Counsel, to have the Tribunal rule upon the particular motions to dismiss, as made by each Defense Counsel, prior to or immediately after such Defense Counsel has put in his approval.
THE PRESIDENT: You mean the rulings will be made in the case of each individual defendant when that defendant has rested his case?
MR. McHANEY: That would suit the Prosecution very much. The problem is this: The first question raised by substantially all of the opening statements is the legal basis for the crime of conspiracy. That question is common to all of the defendants, since each of them have been charged in Count 1. The Prosecution would be prepared to submit a brief on this question at a rather early date, I should think, at the least, by Monday of next week, so that the Tribunal could at any time rule on the question of conspiracy.
Be that as it may, I do not think there is any necessity for a ruling on that particular question because I do not think it affects the rights of any of the defendants in so far as proof is concerned. In other words, a conspiracy is made out normally by showing the participation of the defendants or their connection with the subsequent crimes that is, with the war crimes as alleged in Count II or the crimes against humanity as alleged in Count III, and which is not normally the subject of separate proof in and of itself.
And, I should think that whatever the ruling may be on the conspiracy question, each of the defendants will put in all of the proof that he has available; that he was not connected in any substantial manner with any of the crimes charged there — Counts 11 and III.
As to the motion to dismiss with respect to certain paragraphs of Count II, there may be a slightly different question there which might require an early ruling by the Tribunal, but even as to that I am not sure.
The third question which has been raised by the opening statement is that a number the defendants have been implicated by proof of criminal experiments which were not explicitly particularized in the Indictment. For example, the blood coagulation, fleckfieber and warfare experiments. The Defense Counsel uniformly have taken the position that they are going to ignore this proof on the ground they were not claimed with the crimes which were involved in the experiments. As to that point, I should think there would necessarily have to be a ruling by the Tribunal before any defendant, who is affected by such proof, has completed his case.
And, I might say, without extended argument, that the Prosecution takes the position that the defendants have been sufficiently charged under paragraph 6 of the Indictment with having committed war crimes, in that they performed medical experiments on involuntary human beings which resulted in murders, tortures, and other inhuman acts.
The sub-paragraph of paragraph 6, purports to give particulars of certain of such experiments, but it is explicitly stated in the Indictment, and in paragraph 6 that the experiments were not limited to those particularized. The Prosecution urges that, because we have made every effort to advise the defendants in great detail of the nature of the crimes with which they are charged, we should not thereby be limited in submitting our proof and incriminating these defendants because they happen to have been involved in one or the other experiments which are not particularized in the Indictment. This last point I should think, would require an early ruling by the Tribunal. The ruling on the motion to dismiss, and particularly on the conspiracy Count I think, could be handled on an individual, basis sometime before the defendant had rested its case.
To rule on all of these questions, as raised by the defendants, would put an intolerable burden upon the Prosecution in preparing the necessary briefs for all 23 defendants, and would also require extended study by the Tribunal before a ruling could be reached, and this would result in a delay in the continuation of the presentation of the defendants evidence for, I should think, a minimum of a week, and very likely much longer than that. So, my position is that we be permitted to file brief on each defendant at a time, I should hope, before he begins to present his defense evidence. Such briefs, of course, would be made available to the Defense Counsel, and at same point before the conclusion of his case the Tribunal would reach a ruling in the question raised.
THE PRESIDENT: The Tribunal will ask the Counsel for the Prosecution that before the defendants are call upon to proceed with their evidence, the Prosecution Intends, itself, to ask a dismissal as to any count against any defendant?
MR. McHANEY: That may well be, Your Honor, I am not prepared, at this time, to make any detailed statement on that print, but after a careful analysis of the proof as it has gone into the Prosecution's case in chief, we will attempt to be quite liberal in eliminating any points which we don't think are genuinely in issue and not genuinely proved by the Prosecution.
THE PRESIDENT: It would seem, as to the objections raised by Defense Counsel, to certain evidence that has been introduced, as not falling within the charges named within the Indictment, that the sooner that question be settled the better in order that the defendants would know what evidence they would have to prepare. If that question was not settle' until each defendant was called he would probably feel compelled to prepare evidence on these points which might or might not be pertinent.
MR. McHANEY: I think that is very true, Your Honor, and that was the third pain which I have stated has been raised by the opening statements of the Defense Counsel.
THE PRESIDENT: I understand the Counsel for the Prosecution, but I had the impression that the Counsel for the Prosecution thru each one of these questions could better be settled as the case of each individual defendant was called instead of settling it in advance. I may be incorrect. I may have misunderstood the Counsel for the Prosecution.
MR. McHANEY: I probably did not express myself clearly. I think the question could probably be ruled upon rather easily and without the submission of any extensive briefs. A simply is a question of whether or not the charge contained in paragraph 6 is proof enough to permit the Prosecution to make proof of experiments which are not particularized, in sub-paragraphs of paragraph 6. And, once the Tribunal has decided one way or the other on that question then it will be either incumbent on the defendants to meet that proof in their case or they may if they chose disregard it.
Of course, the evidence, I think, no matter what way the Tribunal rules on the question just raised would be admissible and could be considered by the Tribunal against the particular defendant, especially on the conspiracy Count, and in any event, going to the notice and knowledge of the particular defendant; that is, knowledge of the scope of medical experimentations on concentration camp inmates.
Going to the question of admissibility of evidence, it is simply a question of whether or not it now constitutes a charge of crimes against the defendant upon whether he could be found guilty by the Tribunal; and, that is the question which, I think, would have to be ruled upon probably before any of the Defense Counsel presents any evidence in order that they would be advised of the Tribunal's attitude on that point.
JUDGE SEBRING: Mr. McHaney, the Tribunal understands as far as Count II and Count III are concerned, charges of crimes against Humanity and war crimes they are in and of themselves sufficient basis on which to predicate proof of criminality. The particulars of sub-paragraphs A to L, inclusive, are not a limitation upon the general allegate, but merely descriptive particulars of the general crime charged. Is that what you contend?
MR. McHANEY: That is correct, Your Honor.
DR. FLEMING: Attorney for the Defendant Mrugowsky; Mr. President, the Prosecution has just suggested that it did not desirable to them if the Court should now decide whether the indictment is insufficient on certain arounds and should therefore be dismissed.
I would like to point out the following: The majority of defense counsel hold the paint of view that there is no legal basis for the charge on the count of conspiracy. If the Court decides this question now, there will be no necessity for any defense counsel's going into this question during his case. It will therefore save time for the defense counsel and it will also save time for the Court who would have to listen to statements of defense counsel later.
Furthermore, the Prosecution in regard, to Count II of the Indictment, has stated that they consider it desirable, unless I misunderstood the translation, to state in detail what is charged against each defendant only when the case of that defendant comes up.
If the suggestion of the Prosecutions followed on this point, the consequence would be that the defense would not know, during the whole period of preparation, for which counts it must prepare material.
For example, in the case of Defendant Mrugowsky, I have five counts of Count II of the Indictment. I have stated that the charge is not founded and should be dismissed. The question now is whether I must call witnesses for those five counts, have affidavits prepared —- generally, prepare the entire defense — or whether the Court will now examine the question whether the Prosecution has presented evidence on these counts which may be considered conclusive proof against the Defendant Mrugowsky.
If the Prosecution has not submitted such proof, then, in my opinion, the charge should be dismissed and the Tribunal and the defense will not have to concern themselves with these counts anymore. Other defense counsel are in exactly the same position.
Further, the Prosecution pointed out that during its case, it submitted material on counts which were not included in the Indictment at all. I may point out that a regular charge, as demanded by the Charter, has not been made.
The Charter requires that the Defendant knows when he is charged and with what he is charged, and that he be presented with this information in sufficient detail. We do not know even today, which of the defendants the Prosecution is charging for the various experiments. I refer, for example to the Polygal experiments and similar experiments.
In the entire case of the Prosecution, this has not been stated. We are told only now which defendants are charged with which crimes, and what evidence and what proof the Prosecution has. I should therefore like to ask the Tribunal; whether at the present stage of the trial; a decision can be reached as to which counts the charges are inadequate and not according to the charter of the Tribunal; and should therefore be dismissed.
I ask that so defense counsel may know for the preparation of our case, what we have to deal with and what evidence we will have to present.
DR. FLEMMING: Attorney for Viktor Brach, Mr. President, part of defense counsel in their opening statements did not mention the inadmissibility of Count I of the Indictment. I do not know the reasons for this. I can only speak for myself, consequently, when I say that I expressly and intentionally did not discuss this question because I consider it a part of the final plea. However, since the Prosecution has brought this important point up for discussion, and has suggested that it might be expedient to have the Tribunal decide on certain important points now, I should like to state, expressly for my client, Viktor Brach, that he agrees with the statements of defense counsel who objected to Count I this morning.
MR. McHANEY: I would like to state the Prosecution recognizes that the issue of the legal basis of Count I is being raised by all defendants. They need not make their application. We concede they all raise this question, although it has not been mentioned by all of them.
THE PRESIDENT: The record may show that is understood and agreed to by the Tribunal.
DR. SEIDEL: Attorney for the defendants Gebhart, Oberhauser, and Fischer; Mr. President, to supplement the statement of my colleague, Dr. Flemming, I should like to add the following:
I make the application which the Prosecution has just suggested. In the course of the proceedings, documents have been submitted concerning experiments and medical experiments which are not listed in the indictment.
At the beginning of the trial, one defense counsel stated that the Indictment did not fulfill the requirements of the Charter. It was pointed out that the Indictment did not list, in detail, the crimes with which the defendants are charged, and that it limited itself to legal statements.
I refer to Article IV of the Charter where it says:
To preserve the rights of the defendants, the following procedure is to be taken: The defendants are to be given a copy of the Indictment as well as all documents within a reasonable period before the proceedings. The Indictment is to list the charges clearly and in sufficient detail in order to inform the defendants about the punishable actions with which they are charged.
I take the liberty of pointing out that before the proceedings the defendants were not given any documents whatever.
I take the liberty of pointing out, further, that in all these nine counts of the Indictment, for example, the experiments on Polygal are not mentioned.
Then, months after the beginning of the trial, the Prosecution comes with new charges. This is in opposition of the Charter, and the rights of the defendants are being infringed upon. Those rights were to be protected by these rules.
I, therefore, make application that the intention of the Prosecution to introduce new charges be rejected.
MR. McHANEY: I think the Tribunal understands the position of the Prosecution on this point, I do not want to even begin to engage in extended argument. It comes as something of a surprise to hear any defense counsel, who participated in Case Number I before the International Military Tribunal, suggest that we have not advised the defendants of the nature of the crimes with which they are charged.
The Indictment in this case contains so many more particulars and is so much more definite than the Indictment which was sustained before the International Military Tribunal that there is no comparison between the two. The prosecution has made an effort to advise each and every defendant in the dock of the major charges against him.
We now hear the suggestion made that we are to be limited because of the particulars which we have given. The crime charged against these defendants is that they have committed war crimes and crimes against humanity in that they they have unlawfully and criminally experimented upon involuntary human subjects. I submit that it would not have been a closed question if Paragraph 6 without any particulars whatsoever would have been a sufficient indictment, particularly in face of the Indictment which was sustained in Case I.
Also, in the charge sheets which are submitted to the defendants before the Military Commissions, such as the one at Dachau, they have tried upwards of 79 men on a charge sheet of not more than one page and which contains only general language of crimes.
It is not here a question of dismissing any paragraph of the Indictment. These men are charged under Paragraph 6 and under Paragraph 11 with having committed war crimes and crimes against humanity respectively. We describe the way in which those crimes were submitted.
If the Prosecution is prepared to concede it has not proved that Karl Brandt was implicated in the high-altitude experiments or that Blome was not implicated in one of the other experiments; it is not a question of dismissing any part of the Indictment. The crime charged is contained in Paragraph 6. The Prosecution nay well concede we have made no proof on a particular sub-paragraph thereof; but it constitutes no dismissal of anything against that particular defendant.
It does relieve him of the liability of going forward with proof that he was not implicated in that. Of course, this Tribunal has every right to now review the evidence in the prima facie case made by the Prosecution. If it decides we have not put in a prima facie case against Karl Brandt on the high-altitude experiments, the Tribunal can so advise Karl Brandt, and he will not have to go forward with proof on that particular experiment. But, certainly, there is no question of dismissing anything in the Indictment. Karl Brandt stands equally accused under Paragraph 6.
THE PRESIDENT: Counsel's position is correct in ruling that if the prosecution has not made a case under a count, it would not call for a dismissal. It would call for a ruling that the defendant would be relieved from going ahead with rebuttal evidence on that certain charge or count or what it might be called.
MR. McHANEY: That is correct. That is the way the Prosecution understands it.