1947-07-14, #6: Doctors' Trial (late afternoon)

Dr. Nelte, counsel for defendant Handloser, begins his closing argument

THE MARSHAL: Persons in the court room with please be seated.

The Tribunal is again in session.

THE PRESIDENT: The Tribunal will now hear counsel for the defendant Handloser.

DR. NELTE: For the defendant, Handloser.

Mr. President, please permit me first of all to draw the Tribunal's attention to those passages in my closing brief which I cannot bring here orally for lack of time.

THE PRESIDENT: Counsel for the defendant, Handloser, and all other defense counsel, may be assured that the Tribunal will give the most careful attention to the briefs which they will file or have filed on behalf of their respective clients.

DR. NELTE: Mr. President, your Honors, I regret exceedingly that none of the representatives of the Prosecution are present, who this morning treated the defendant Handloser in a rather peculiar way. It is important to me right at the beginning of my presentation to answer what the Prosecution this morning said regarding the similarity between the defense for Handloser and the defense for Keitel. Apparently by this parallel the impression was to be created that Handloser's case, that is to say the facts in the Handloser case, are similar to the facts in the Keitel case before the IMT. A person who makes such an assertion either is not familiar with the documents put in in the IMT trial or in drawing such a parallel he is pursuing as particular aim. This can be seen, and I may assume that the Tribunal as clearly recognizes this aim as I do. If, however, the Prosecution has brought up the ghost of the Keitel trial then I must be permitted to point out the following:

The Prosecution has stated, I quote, according to my notes:

In his defense Handloser refers to the fact that he, as Chief of the Wehrmacht Medical Services, had no right to issue orders.

And Keitel made the same statements in his trial before the IMT. From the opinion of the IMT, from the judgment against Keitel, I shall read as follows:

Keitel had no power to issue orders to the three branches of the armed Services.

Thus, the IMT confirmed the correctness of Keitel's allegations on this matter. It must be assumed that the Prosecution is familiar with this judgment of the IMT and, therefore, knew that the IMT had set down in its judgment that Keitel had no right to issue orders. Nevertheless, however, it has here asserted the contrary. There is, however, one circumstance that makes this comparison between Handloser's and Keitel's case interesting. In the case against Keitel the Prosecution based its charges on an incredibly large number of documents. There were more than 2000 documents bearing Keitel's signature. The Prosecution emphasized at that time the convincing nature of that nature of the evidence and it was on this that the IMT's judgment was based which deduced Keitel's participation in War crimes.

And now, your Honors, take the 19 document-volumes put in in this proceedings by the Prosecution. You will find therein no single document that bears Handloser's name as a signature or as the person responsible for the criminal facts. This is an extraordinary fact but it is true. And, only this fact can explain why the Prosecution found itself under the obligation to do what I have just described their doing.

The Prosecution has charged Professor Handloser with special responsibility for, and participation in, tests which were conducted in concentration camps on involuntary experimental subjects contrary to recognized rules of medical science.

The indictment is directed against Professor Handloser personally, in his capacity and on account of his functions, rights, and duties as Inspector of the Army Medical Service and Chief of the Wehrmacht Medical Service.

By this, the Indictment rises to an importance which exceeds the frame of a personal indictment. The statements of the Chief Prosecutor are a collective indictment of German physicians and, in Handloser's case, of the physicians of the Wehrmacht, but the Prosecution has not adduced concrete evidence for this in the course of its submission of evidence.

This collective tendency, it seems to me, is a danger for the objective determination of the truth, for, in retrospect, single events which are without inner connection and dispersed over years, can easily be made to appear as the workings of a plan. This tendency can be recognized for instance in the question of the Chief Prosecutor (page 23 of the English transcript):

Are the experiments a continuous list of atrocities, or has the entire group something in common?

The Prosecution sees this "common thing" in the fact that the experiments had a "public connection" with the battle in the air and on the battlefield, as well as with the most important diseases which had "to be combatted by the German forces and authorities in the occupied countries."

The prosecution believe that this explains:

the reason why the Wehrmacht and especially the Luftwaffe participated in the experiments.

From there it is only a small step to the statement often repeated in the individual facts that the experiments were carried out "in the interest of the Wehrmacht". so that, according to the old axiom "cui bono", the Wehrmacht, i.e. the medical service of the Wehrmacht, could be pointed to as the guilty party.

In an interrogation with Dr. Fischer I have dealt with this question in connection with the sulfanilamide experiments in Ravensbruck. Evidence has shown quite clearly that the Medical Service of the Wehrmacht did not participate in those experiments in any way. During the cross examination by the prosecution, Dr. Fischer confirmed that the sulfanilamide problem was an important problem for the German Wehrmacht. That is correct. The full truth, however, is that the sulfanilamide problem was an over-all problem, one that is of equal interest to the civilian and military authorities. In the meantime even laymen understood that the gigantic, scientific battle between penicillin and sulfanilamides was an admirable competition for the health of humanity.

Dr. Fischer confirmed that in his answer to the question of the Prosecutor he did not want to say that this problem was of a purely military nature, but that it was a problem for all physicians.

The same also applies to all epidemic problems, which show even more clearly that the entire population, front line and zone of interior, occupied territories and prisoners of war, have the right to demand that all authorities responsible for sanitation must take steps to combat epidemics effectively. The words "in the interest of the Wehrmacht" are, as such, neither a proof nor an argument.

In the indictment and during submission of evidence by the prosecution it was not asserted that the experiments were carried out "on behalf of the German Wehrmacht". During submission of evidence, the prosecution has expressed, or, at any rate, tried to make it appear, that the Wehrmacht had caused or promoted these experiments, because it had an "interest" in them.

Equating objective interest in research with illegal experiments in this field is not evidence, but an invalid construction, unless causality is proven.

The prosecution not only had to prove, as it did, that Professor Handloser and his offices had an objective interest in each research, but that there was a special interest has by no means been proved against Professor Handloser in any single instance.

This submission of evidence by the prosecution, based on general reasoning in the case Handloser, is misleading, because it connects things which are generally valid and permitted with individual facts which were not symptomatic, but exceptional occurrences.

There is no country and no army in the world which never has carried out tests and experiments in the same fields. In this proceedings it has also become evident that research in all countries applied the same methods, including the experiments on human beings.

Mr. McHaney stated explicitly, page 5532 of the German and page 5465 of the English transcript, that the defendants in this trial are not being accused because of the experiments on human beings as such, and that these experiments are an approved method of medical activity. He then continues:

The crimes (of the defendants) are in their majority connected with the use of non-volunteers for the experiments and also with the lack of care of knowledge during their experiments and things similar to these, which we can characterize as illegal actions.

(Page 5465 of the English transcript).

The field of research in Germany was colossal. Universities, academies, medical-scientific institutions, laboratories of the big pharmaceutical industry, medical institutes (Robert Koch Institute, Institute for Experimental Therapy, Frankfurt), medical scientific institutes of the individual branches of the Wehrmacht, and finally the research institutes of the SS. All these institutes, conducted medical research in all fields during the war, especially about problems which appeared urgent, directly or indirectly as a result of the war.

If we compare this entire field with the individual facts listed in the indictment, we must establish that the experiments characterized as criminal are only the smallest parts of the entire research; furthermore, that the medical institutes for scientific research which were under Professor Handloser's supervision are not charged with any of the experiments which are indicted here, even though nearly all fields of research which are under discussion here were also carried out in institutes which were under Professor Handloser's supervision.

If this is the case and if none of the experiments carried out in these institutes is indicted here, then an actual surmise, namely that arising from a satisfied interest, speaks for the fact that Professor Handloser as Inspector of the Army Medical Service was not interested in these experiments as they are indicted here.

In this proceedings the prosecution again and again has talked about "responsibility" as if only one specified conception of responsibility were existing. However, this conception has, as I already stated in my opening statement, many meanings. (Page 3127 and 3128 of the English Proceedings). The prosecution accuses Professor Handloser in all charges against him of "special responsibility for and participation in" the tests and experiments. It can not be recognized from the statements of the prosecution which importance with regard to criminal procedure the words "special responsibility" besides the word "participation" are supposed to have. One may assume that the prosecution desires here to make a distinction between "general" and "special" responsibility where apparently the "general" responsibility of a defendant is based on the office he held or to his membership in a group, and the "special" responsibility on the participation in a special case.

Whatever the case may be, if in these proceedings a "responsibility" is mentioned, only the criminal responsibility can be referred to. Such a criminal responsibility may arise if the defendant instigated, ordered, carried out or permitted the offense of if he participated in any other manner actively and by this participation made himself liable to punishment. Therefore, this results in the fact that the accusation of "special responsibility for and participation in" are synonymous and can only mean that the defendant had participated in the facts of the individual cases in a manner for which he is liable to punishment.

This finding seems necessary, because during the submitting of evidence the prosecution repeatedly asked, whether one of the defendants would take the responsibility for the field covered by his office or for the behavior of one of his subordinates. As here the establishing of the responsibility of a defendant for which he is liable to punishment is at stake, the question arises whether one can assume at all the criminal responsibility for illicit acts of another person.

The assuming of the responsibility for the field covered by an office exists only within the field of political and military responsibility. Ministers are responsible to Parliament, military commanders to the Supreme commanders having military jurisdiction without the question of a personal guilt having to be considered here.

For the establishing of the criminal responsibility which alone is under consideration here, only the legal principle that a guilty person is the very person who violates a law, who commits an illegal act, can be considered here. The punishment of a person for the behavior of another person would be incompatible with this principle. This also applies to the relation to the deputy in office and to the members of the office. Just as there is no deputizing in guilt, there is also no deputizing for punishment.

This principle of purely personal responsibility is being expressed in the sentence of IMT (pages 16502/2) — Doc. HA-01, Figure 4, Doc.-Book Handloser I, page 2. According to this, the fact that criminal guilt is personal one belongs to the most important generally acknowledged legal principles.

The International Military Tribunal has clearly objected to the attempt to transfer the principles of political responsibility to criminal law.

Military Tribunal No. 2 took the same point of view in the sentence against Milch, and gave the reasons in a most appreciable and detailed manner as follows:

It must be constantly borne in mind that this is an American Court of Justice, applying the ancient and fundamental concepts of Anglo-Saxon jurisprudence which have sunk their roots into the English common law and have been stoutly defended in the United States since its birth. One of the principal purposes of these trials is to inculcate into the thinking of the German people an appreciation of, and respect for, the principles of law which have become the backbone of the democratic process. We must bend every effort toward suggesting to the people of every nation that laws must be used for the protection of people and that every citizen shall forever have the right to a fair hearing before an impartial tribunal, before which all men stand equal. We must never falter in maintaining the practice as well as by preachment, the sanctity of what we have come to know as due process of law, civil and criminal, municipal and international. If the level of civilization is to be raised throughout the world, this must be the first step. Any other road leads but to tyranny and chaos. This Tribunal, before all others, must act in recognition of these self-evident principles. If it fails, its whole purpose is frustrated and this trial becomes a mockery. At the very foundation of these juridicial concepts lie two important postulates:

1. Every person accused of crime is presumed to be innocent, and 2. that presumption abides with him until guilt has been established by proof beyond a reasonable doubt.

Unless the court which hears the proof is convinced of guilt to the point of moral certainty, the presumption of innocence must continue to protect the accused. If the facts as draw from the evidence are equally consistent with guilt and innocence, they must be resolved on the side of innocence. Under American law neither life nor liberty is to be lightly taken away, and, unless at the conclusion of the proof there is an abiding conviction of guilt in the mind of the court which sits in judgement, the accused may not be damnified.

Paying reverent attention to these sacred principles it is the judgment of the Tribunal that the defendant is not guilty of charges embraced in Count Two of the Indictment.

These statements have a special and previously judged significance for the case Handloser, because Count #2 against Field Marshal Milch referred to the high altitude and freezing experiments and to the problem of responsibility in his jurisdiction. Handloser, when questioned by the prosecution, stated that he took the responsibility within the sphere of activity for everything he instigated by an order, or by a general regulation, (3005/6) Page 2990/91 of the English.

But the prosecution submitted neither an order nor a regulation, nor any other evidence which could be an order or a regulation, with regard to the experiments as such, or to the participation of one of his subordinates in such experiments as are indicted here.

The sphere of activity of Professor Handloser as Inspector of the Army Medical Service is clearly and definitely regulated by the Army Medical Regulations H Dv 21 part I Section 5 — 11 — Doc. HA-28a, Exhibit 2. In this field he was the superior of the Army Medical Officers and was competent to issue orders, also with regard to research as far as research work can be ordered at all.

But the prosecution neither has asserted nor proved, that Professor Handloser as Inspector of the Army Medical Service issued orders or decrees to the research institutes subordinated to him — Army Medical Academy, Berlin, Mountain Medical School Sankt Johann Spotted Fever and Virus Institute Cracow-Lemberg Surgical Special Hospital of the Supreme Command of the Army in Brussels — to carry out illicit experiments on human beings, or that such experiments were carried out there.

The assertion of the prosecution that some Medical Officers of the Army came somehow into contact with persons or offices outside the army jurisdiction, which are guilty or illegal experiments on human beings, would only be important if these Medical Officers of the Army would have committed a punishable act or participated in such an act and if this could actually be charged to the improper behavior of the defendant Handloser.

The prosecution apparently assumes that the highest authority (i.e. chief) of a large sphere of activity has knowledge of all happenings within this sphere.

Furthermore it does not conform to the actual experience that the person exercising the highest powers of command within the military hierarchy of the army is in some degree the originator of all orders carried out by a subordinate in this hierarchy. If an order has been issued it must be determined who of all the supervising chiefs of the offices in this hierarchy is the originator responsible before criminal law for this order. If no special order was issued it must be examined whether the incriminating behavior was prompted by circumstances, which lie within the scope of responsibility before criminal law of the defendant personally, such as orders and regulations which rendered possible the criminal behavior of a subordinate or appropriate consent, to commit the criminal offense before its beginning or its completion.

In the course of these proceedings, the prosecution would have to assert and to prove in each case:

a) that the behavior of the subordinate constitutes a punishable offense

b) that this behavior was the result of either

1) a special order or general directive issued by the defendant as superior, or

2) consent given by the superior prior to the offense, i.e., omission of a duty-bound prevention.

Only in this case can the defendant be charged with being an abetter, offender or accomplice, or participator.

In my Closing Brief I have dealt with the various details which have been submitted by the Prosecution in order to deduce Handloser's responsibility from the contact of subordinate medical officers with persons or agencies who are directly accused. In principle I have to say — and this goes for the Prosecution's Closing Brief as well — that in no case is there any substantiation nor proof of the factual elements necessary according to penal law.

The Prosecution described the activities of the subordinates in a general form, as for instance: Visit Prof. Eyer — Dr. Schmidt at Buchenwald. Visit Dr. Hirth in Strasbourg. Visit Dr. Dohmen in Strasbourg, but they left us in the dark how far these activities can be judged criminal and on which facts to base a criminal responsibility of Handloser.

In no case the assertion has been put forward concretely of a casual activity of Handloser's nor of his knowledge.

It seems as if the Prosecution believe that the contact of one of Handloser's subordinate with a person or agency who is incriminated by some experiment were sufficient to prove: knowledge, condoning and promoting of these experiments This would be a construction but no evidence of facts according to penal procedure.

Furthermore, the Prosecution seems to think that official supervision over a medical officer would produce the result that his attitude and his knowledge could automatically be regarded as the attitude and the knowledge of the highest superior, who would be Professor Handloser. This would be incorrect because it is in contradiction to the fundamental principle of individual guilt.

If one desires to arrive at a correct concept of the term official supervision and is to apply its content to the problem of this trial in the case of Handloser one must not rely on a theoretical analysis of the term, but one has to draw a visual image of this institution rooting in facts and in practice.

Official supervision embraces the right and the duty within an agency or channel of command to order all that to supervise it, or to have it supervised, which is necessary and possible, in order to:

a) secure the execution of orders and directives issued by a higher agency;

b) guarantee obedience to and execution of orders and directives issued by his own agency;

c) supervise obedience to the general principles of military and medical-military service.

The crux in this trial; which is a trial of Professor Handloser's person; is again not the assertion that Handloser has violated his duty with respect to the general official supervision in his capacity as Medical Inspector of the Army; but the Prosecution seems — again and again one can only assume so — be haunted of a concept of a concept of personal and immediate official supervision of Professor Handloser over all medical officers of the Army and over all agencies subordinated to him.

Especially strongly this is evidenced as soon as the discussion turns to the Military Medical Academy and to the medical officers who were active there.

Exactly when discussing this case of the Military Medical Academy — I draw Your Honors attention to Document HA 29, Exhibit 4, page 60 of the Document Book — Professor Handloser clearly expressed the purpose and aim of this institute; its organization and its relation to him in his capacity as Medical Inspector of the Army. The Military Medical Academy was an independent institution charged with the following tasks:

(a) additional training of new classes for medical officers (training group A and training group B)

(b) medical and practical advance training of medical officers and clinical treatment of Army medical problems and tasks (training group .C). These problems were attached and solved just as they were in any other academy; on the academy's own responsibility.

To evaluate correctly the subordination under the Army Medical Inspector; one should compare it to the subordination of a University under the "Ministry of Culture". From this it follows; that as far as treatment and carrying out of clinical tasks are concerned; those persons were responsible for it who had been assigned to the Army Medical Academy for this purpose. Prof. Handloser, as Army Medical Inspector; could only be considered for an evaluation or decisions of questions if they were submitted to him directly or through official channels. In this trial we can only be concerned with questions which were treated by training group C. If problems arose, whose decision, according to the opinion of a Chief of the Institute, should be reserved for a higher authority, then the Chief of the Institute submitted the matter to his Chief, i.e., the Commander of Training Group C. If the latter considered himself unable to decide then the Commander of the Army Medical Academy was competent for the decision.

Only if the affair exceeded the competency of the Commander of the Army Medical Academy, was it brought to the attention of the Army Medical Inspectorate and there it came to the Chief of the Department for "Science and Health Research". Again only if the latter too, believed that important fundamental questions were involved, were they submitted for decision to the Army Medical Inspector after the Chief of Staff of the Army Medical Inspectorate had been informed.

Because of this limitation of competency and working arrangement it is impossible that Prof. Handloser could have exercised a direct and personal supervisory authority over Medical Officers which were active in the individual institutes of the training group C of the Army medical academy.

However the Army Medic Academy was only one of altogether seven institutes which were directly subordinate to the Army Medical Inspectorate.

They were located in Berlin, Cracow-Lemberg, in St. Johann and in Brucelles. All institutes had the same military relationship as the Army Medical Institute so that the official business was transacted in the same manner with these institutes.

But these Institutes were only a fraction of the units and tasks which were part of Professor Handloser's field of activity. If one considers now that Prof. Handloser was not only Army Medical Inspector, but also at the same time Army Physician and Chief of the Army Medical Service in which capacity he had equally important and time consuming tasks and (if one considers too) that, as has been proven, he very frequently went on official inspection trips in front line areas and only personally present in Berlin during 1/10 of his time, then one can gain the proper point of view for judging the question whether the duty for supervisory authority of Prof. Handloser made at all possible a personal and direct control of all Army Medical Officers active in units and subordinate to him.

It could only be the task of a Medical Officer heading such a vast field of problems to take care, within the frame work of his duty for supervisory authority, that the intermediate superior officers had sufficient qualifications for their jobs and that the military report and communications system was organized as well as possible. It was Prof. Handloser's task, in his field of activity, to gain the proper control of the "overall picture". Prof. Handloser performed his duty as supervisor by being most fastidious in the selection of the subordinate "Leading Medical Officers", by doing everything possible to convince himself personally how the tasks were being accomplished and by scrutinizing most carefully the reports in the field of the Medical Service, in substantiation of which he has put in evidence Document HA-65, Exhibit 62.

The Prosecution has produced no facts going to prove that Prof. Handloser, after being informed of culpable behavior on the part of one of his subordinates, would have failed to take steps. In view of this fact, it is not necessary to present proof of this. But it is nevertheless worthy of note that the evidence brought forth has given symptomatic indication that Prof. Handloser, when he did have knowledge of abuses, took care to have them stopped. I refer to the affidavits of the Swiss Oberstarzt [Colonel, Medical Corps.] Dr. Theodor Brunner and the chairman of the Mixed Physicians Commission, the Swiss Oberstarzt Dr. A. von Erlach.

The charges brought against Handloser can be characterized as lacking in concrete statements of incrimination.

The Prosecution has produced no documents and no witnesses to substantiate its charge of personal particular responsibility and participation in the individual deeds.

Go through the 19 document books and supplementary documents put in by the Prosecution and you will look in vain for Handloser's signature under an order or directive. One single document (Document 1323, Exhibit 452) bears his signature, and this document is one of the most convincing documents in his exoneration.

I may be permitted to ignore the various affidavits by Rudolf Brandt which the Prosecution has here put in evidence. The value of this evidence is patented. If the Prosecution feels that it must have the co-defendant, Rudolf Brandt, confirm assumptions which the prosecution cannot itself prove and for which Rudolf Brandt also, according to his sworn testimony, lacks all concrete substantiation.

Prof. Handloser was for 3 3/4 years (from 1 Jan 1941 to 31 Aug. 1944) Army Medical Inspector. If the Prosecution has not been able to produce one single document from nearly four years of the defendant's activity as Army Medical Inspector that bears on the criminal experiments and that contains Handloser's name as signature or as the person responsible, then this fact refutes prima facie the assumption of the Prosecution.

Prof. Handloser as Army Medical Inspector, was the highest man in the Military-medical hierarchy of the Army. This was an important position and his staff, the Army Medical Inspectorate, was a large organization of which the Chief of Staff was Generalartzt Dr. Schmidt Bruecken. This staff was in Berlin whereas Handloser spent 90% of his time in Headquarters at the fronts. All receipts, letters, reports, went through the registry office, the departmental chiefs and the Chief of Staff. Prof. Handloser received nothing that had not previously come to the attention of the registrar, the departmental chief or the Chief of Staff. All conferences that Handloser had with his department chiefs were also known to the Chief of Staff who, as a matter of principle, had to be informed of them beforehand. All discussions with third parties were arranged for by the Chief of Staff; he saw to it that an expert was present at such discussions.

If Professor Handloser had conferences with other officers or outside his own office he was accompanied by an expert in the matter that was to be discussed.

The results of these discussions were in every case set down in some identifiable form such as orders, letters, directives, file notes. The orders went down through the hierarchy to the last office, which was to carry the order out. The directives were distributed to a larger or smaller number of other persons. The circle of persons who, in Prof. Handloser's immediate vicinity and in the larger field of the office in question, had to have knowledge of every fundamental or general decision or directive of Prof. Handloser's was very large.

Therefore Prof. Handloser could do nothing, order nothing, plan nothing, without its happening that this inevitably became known in the outside world and to a specific circle.

The person who inevitably knew of occurrences within the Army Medical Inspectorate was the Chief of Staff Generalarzt [General Physician] Dr. Schmidt-Bruecken the person who inevitably knew of the occurrences in the Office of the Chief of the Wehrmacht Medical Services was the Chief of Staff Generalarzt Wuerfler. The functions of these two Chiefs of Staff have been carefully described by Prof. Handloser in the affidavit HA 29, exhibit 4 and the two chiefs of staff have confirmed under oath the correctness of his description. In this connection the mutually corroborative testimony is important that within the sphere of Handloser's office absolutely nothing could take place of which the chiefs of staff could have been ignorant, and that they in their official positions never had knowledge of experiments such as are at issue in this precedence.

The second category of those who knew of occurrences was the leading and chief medical officers, since they were the intermediaries between top and bottom and between bottom and top, so that every order or directive from above, as well as every report from below had to pass through them along official channels.

From this category the defendant has spontaneously been sent numerous affidavits which I have put in evidence and which show that Handloser never issued orders or directives which violate the recognized precepts of medical practice. The same is true for the category of consulting physicians, who have confirmed Handloser's exemplary orientation as a doctor.

Finally, the sworn testimony of the co-defendants and witnesses: Prof. Karl Brandt, Prof. Gebhardt, Prof. Rose, Prof. Mrugowsky, Generalarzt Wuerfler, Generalarzt Schmidt-Bruecken, Generalarzt Dr. Jaeckel, Prof. Gutzeit, has proved that Prof. Handloser never spoke with any of these men about experiments on human beings in concentration camps.

What an extraordinary man Prof. Handloser must be if he, whether as instigator, abettor, or participant, had anything to do with the experiments on human beings in concentration camps. Although, as we have seen, his activities were subject to continuous and inevitable check, he would have had to be able, in an incredibly subtle way, to keep secret or to camouflage, throughout the entire duration of his activities as Army Medical Inspector and Chief of the Wehrmacht Medical Services, everything that referred to human experimentation in concentration camps. Handloser, as the "man behind the scenes," would have had to conceal, in a masterfully fashion, his "true" intentions and his "criminal" actions from his chiefs of staff, his associates, his leading medical officers, his consulting physicians, and even those who knew of the human experiments, so skillfully that no one had any inkling of them.

Is that possible? No, Your Honors, that is impossible. The Prosecutor himself said "there is no secret about Handloser" (p. 3630 German transcript). These words are important and are valuable in Handloser's defense; his actions, his orientation, his personality, are clear as day. This is so far true that in his case even that can be seen which is otherwise obscure in criminal cases; the subjective aspect of the facts, his true intention and his medical, soldierly, and human orientation.

This becomes entirely clear from his speeches before the consulting physicians and from the prefaces that he wrote for the printed reports on the conferences.

The Prosecution has put in evidence various excerpts from the conference reports from the consulting conferences and in order to incriminate the defendant Handloser, has referred to him as the man in charge of the consulting conferences. In order to find the truth it appears important to examine the words that Handloser uttered at a time when he did not have to concern how Germany's enemies would construe his words.

If he had been in any way connected with innovating new methods of research that deviated from the previously accepted rules, if indeed, as the Prosecution asserts, he had provided the incentive for the experiments in Buchenwald, what would have been more natural than for him to claim the credit or at least to make his interest known in such representative addresses. In point of fact, however, Handloser's addresses contain no word that allows one to deduce that he even had knowledge of these experiments on human beings. The defendant Handloser, also, cites his statements and asserts that no chief of the medical services of a nation waging war could have spoken differently in essence.

This brings me to the count in the indictment "Typhus Experiments," the only count of the indictment in which Prof. Handloser is brought into immediate association with the incriminating experiments.

The following constitutes the typhus problem in the Handloser case:

The prosecution states that Professor Handloser, because of the Army's interest in the production of typhus vaccine, used the SS and its research institute in Buchenwald to make use of new methods in the matter of artificial infection with typhus bacilli. These methods were not in accordance with the recognized rules for medical research.

During presentation of evidence by the prosecution and during cross-examination the interest which Prof. Handloser had in the typhus problem was emphasized again and again, a fact which was never contested by Prof. Handloser but which has no probative value in its general aspects, but which is capable of making the finding of the judgment more difficult.

The typhus problem comprises typhus research production of typhus vaccine the procurement and distribution of typhus vaccine.

Professor Handloser never contested to have been interested in all these questions. He definitely denied, however, that, within the framework of his line-of-duty fight against typhus, he was interested in typhus research which is solely under indictment here.

It is confusing to derive the assumption that an interest in illegal and improper research existed from a duty-bound interest in research itself. This would constitute a reversal of the burden of evidence. Rather it is to be assumed because of lack of indications and evidence that a duty-hound interest in definite research according to legal and recognized medical rules was intended i.e., the normal state of affairs is rather to be assumed.

It is equally incorrect to point to the interest of the Army in an attempt to characterize the general assumption.

Professor Handloser, during the critical period (end of 1941, beginning of 1942) was only medical inspector of the Army. He became Chief of the Army Medical Service only on 1 August 1942. Not only the Army, however, but also the other branches of the armed forces, the Waffen SS, the Home Front, the prisoners of war — that is, the Allies — and the population of the occupied territories were interested in combatting typhus. On top of that, Professor Handloser, as Army Medical Inspector, had the research Institute for virus of the OKH in Krakau/ Lemberg under his jurisdiction which produced typhus vaccine from the intestines of lice and he worked on its completion and on its increase of production.

After all, it was not as if one had still to invent typhus vaccine.

Besides the Weigl vaccine, which was made from intestines of lice and which I have mentioned, there were still the various processes of vaccine production from hen eggs and the vaccine according to Durand and Giroud, for the production of which the lungs of guinea pigs were used. These vaccines had already been tried and proved and used to a limited extent. For these vaccines then only the proof of their efficacy on a large scale in relationship to the Weigl vaccine was still missing.

It was necessary to carry out this test in order to achieve the largest degree of certainty.

The normal method for this was the epidemiological experiment; that is, the vaccination of a large number of people in areas threatened by typhus by using the vaccines to be tested, in equal amounts, side by side. Such a vaccination on a large scale, however, has nothing to do with experiments as they are indicted here. It is a preventive vaccination with a tested and tried vaccine, at least on a limited scale.

In first place, however, stood as primary and decisive measure in the struggle against typhus the combating of the louse. From the very beginning of the typhus crisis all the offices of the Wehrmacht (Medical Officers and troop leaders) were reminded, through large scale propaganda, of the principle: "the struggle against typhus consists in the struggle against the louse." This sentence was disseminated on hundreds of thousands of posters. Simultaneously, on the entire Eastern front both decentralized and centralized delousing stations were set up. In addition, the troops were, to a consistently increasing extent, provided with louse power.

At the conference of the consulting physicians in May 1942 the typhus problem occupied the center of the stage. Following four basic lectures there was a discussion in which 23 speakers participated. Professor Habs said:

the basic principle must remain 'delousing controls typhus; on the front hot air delousing is sufficient

(page 52 of the conference report). Policies for the combating of typhus which were drawn up at this conference begin with the sentence, "the combating of the body louse is the basis for the combating of typhus." That was the situation at the end of 1941.

Professor Handloser's interests are clearly to be seen. They were (a) primarily the combating of the louse, (b) increasing the production of typhus vaccine. Thus, it was not the problem of typhus research that stood in the foreground but the extension of the struggle against the louse and the increase in the production of the reliable Weigl vaccine, as well as of other tested vaccines.

This latter problem was the deeper reason and incentive for the letter that Professor Handloser sent to the Reich Health Leader, Dr. Conti, who was competent for the Government General and the Homeland, on 10 November 1941 (Document No. 1323, Exhibit 452). This is the only prosecution document that bears Handloser's signature and it proves the correctness of his orientation toward the typhus problem. It confirms that the OKH Institute in Crace-Lemberg had been asked to provide typhus vaccine but that the Army's requirements could hardly be met by this Institute and that increasing requirements were to be expected for the Homeland.

Therefore, Professor Handloser proposed that the production of typhus vaccines should be placed in the hands of the pharmaceutical industry.

Pursuant to this suggestion Staatssekretaer [Secretary of State] Dr. Conti, who, as I have just said, was competent for the Homeland and the Government General, ordered:

discussion of production of typhus vaccine by the pharmaceutical industry.

He oriented the Robert Koch Institute, which was subordinate to him, the Behring Works in Marburg, which had already previously delivered typhus vaccine and the I.G.Farben Industrie, whose representatives, Demnitz and Zahn, took part in the discussion on 29 December 1941 in the Reichs Ministry of the Interior.

It can accordingly be assumed that the conference on 29 December 1941 in the Reichs Ministry of the Interior on the typhus situation is to be attributed to Professor Handloser's suggestion in his letter of 10 November 1941. But there can be no doubt that this conference was to and did concern itself solely and exclusively with the question of vaccine production and not with the question of research methods such as were used in Buchenwald.

THE PRESIDENT: Counsel, your time has expired.

DR. NELTE: I deeply regret that; because of that I shall not be in a position to read the most important passages in my plea; but perhaps I could use the 20 minutes that Handloser would have for his final statement — 15 to use in his place.

THE PRESIDENT: How long would the balance of your argument consume, counsel?

DR. NELTE: I believe 20 minutes would suffice, Your Honor.

THE PRESIDENT: Well, you may have 15 minutes at the opening of tomorrow afternoon's session.

Now, this Tribunal will not be in session tomorrow morning. The Tribunal will now be in recess until one-thirty o'clock tomorrow afternoon. Dr. Nelte may then have 15 minutes which is not to be taken as a precedent by other counsel. I suggest other counsel remember to read the more important portions of their arguments first instead of at the last.

The Tribunal will now be in recess until one-thirty o'clock tomorrow.

THE MARSHAL: The Tribunal will be in recess until one-thirty tomorrow afternoon.

(The Tribunal adjourned until 15 July 1947, at 1715 hours.)