1947-07-15, #2: Doctors' Trial (mid afternoon)

Dr. Pribilla, counsel for defendant Paul Rostock, presents his closing argument

THE PRESIDENT: I would inquire of the Secretary if the translation of the argument of counsel for defendant Rostock has been received in the court room and delivered to the interpreters?

Counsel, I am informed that the translation of your argument as counsel for defendant Rostock has not yet been received.

DR. PRIBILLA (Defense Counsel for defendant Rostock): Mr. President my closing brief has not yet been translated by the Translation Branch, but, through the kindness of the court interpreters, the short excerpt from it that I intend to read here has been translated and the interpreters have one copy of that translation.

THE PRESIDENT: Do I understand from the interpreters that the translation of the argument which counsel for defendant Rostock will make is available to them?

THE INTERPRETER: That is correct, Your Honor.

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

DR. PRIBILLA: Mr. President, Your Honors:

The great English historian and sociologist Thomas Carlyle once said:

Your life, and were you the humblest of human beings, is not a wild dream but a lofty fact.

I do not want to speak to you in this court room without first recalling this saying and thereby seeing before my eyes the picture of the great number of our fellow human beings whose life has really become a wild dream. The fact, on which this trial is based, that defenseless human beings were used by doctors of my country for experiments and in part died after suffering tortures, cannot be denied. I myself would doubt the clarity of my judgment as a German jurist if I did not come to the realization that general human rights such as the fundamental standards anchored in all civilized nations have been violated thereby. Medical science should bring help and healing to suffering humanity. I am proud to state that it was German doctors who, in the last century, saved millions of human beings from the most serious and fatal diseases by their research. Let me remind you only of names like Robert Koch, Emil von Behring, Paul Ehrlich, Theodor Billroth, and August Bier, or medicines such as Germanin, Atabrine, Salvasan, diphteria serum, tetanus serum, and many others. If it were possible to achieve such decisive results in any other way, this would only confirm the actual truth, that no one, no matter how highly placed and no matter how important his aims, has the right to lower other human beings to the level of guinea pigs by force. How could a man venture to dispose in that way of the life and health of his fellow men, be they ever so humble? It seems to me that this involves a fundamental contradiction to the duty of the doctor, a violation of the dignity of the individual, and a presumption which cannot remain without horrible results.

There maybe doubtful cases, there may be borderline cases, but the solution of these questions can be based on only one principle, which is that all creatures in human form have an equal right to life and health. This I consider the decisive point, and I was deeply disturbed to learn in the course of this trial that in other countries, too, points of view have obviously arisen among the medical profession in the last few decades which seem to be irreconcilable with the principle just stated. If this is so, then no distinction must be made as to whether conditions in Germany or in the Philippines or elsewhere are at issue. It may be justified in the case of new medicines to test them on sick persons in the hope of healing them, but no one can persuade me that it can be permissible to infect human beings against their will with dangerous diseases. As defense counsel I can take no other stand. In all such cases the facts must be investigated and the limits of law and right must be made clear to those who violate them. Should a thorough investigation disclose that insufficient clear legislation bears part of the responsibility, should it be discovered that the general attitude of medical research workers even in other parts of the world has become all too broad on this point, then these facts would have to have some weight in lessening the guilt of offenses which have been committed. For future cases, however, it seems to me that clarity is urgently needed.

In view of the suffering and the victims with which we have become acquainted in the course of all these trials, summary justice might have been the expression of indignant human feeling. In the general moral and material chaos of the postwar period, who would have asked whether one life more or less had been extinguished? But that would only have lengthened the chain of injustice and made impossible the process or moral convalescence which we hope for. You, Your Honors, have with rare poise and patience investigated both the facts which form the basis of the indictment and the complicated question of what direct or indirect responsibility these defendants have for the criminal experiments.

You have immersed yourselves in the extremely complicated network of competency of a totalitarian state at war, with its big struggles for power and its antagonisms. The only purpose of this effort can be that the judgment which you pass may be as just as possible. If the expert Professor Leibbrandt was right with his assertion that the medical profession in all countries in the world has relaxed its vigilance against abuses during the past decades, then this can be changed only by a judgment which really corresponds to the highest demands of our profession, which weighs everything and cleanly separates the guilty from the innocent.

Only with such a judgment will it be possible to help humanity to progress a bit after such terrible reverses. Only then can this judgment become a law and a guide for future generations of doctors throughout the world. Never before has there been such a trial, in which leading doctors of a great country were under such serious indictment, and so a just judgment of the High Tribunal will establish the limits and borders of modern medical science. Perhaps in the near future doctors throughout the world will mention it in the same breath with the oath of Hippocrates, which has been mentioned so often here.

If we now, with the knowledge we have gained from the presentation of evidence, turn to the particular case of the defendant whom I represent, Professor Paul Rostock, I believe that the extreme thoroughness of the trial has in this case brought clarity which will permit you, Your Honors, to reach an absolutely clear verdict. I believe that a picture of this excellent man and doctor has been impressed upon you by his personal examination and by the testimony of the witnesses. First I shall bring out the facts which even the Prosecution does not deny. Who is Professor Paul Rostock? Was he a doctor in the SS or even a member of this organization? It has been proved that he was not. Did he carry out experiments on human beings in concentration camps? He never even set foot in a concentration camp. Did Rostock himself perform experiments on involuntary experimental subjects? No one alleges that he did.

Are there documents which show that he ordered or even suggested such an experiment? After the end of the presentation of evidence, we see that there is no such document. Moreover, the Prosecution has not submitted any document addressed to Rostock or signed by him which might indicate any other participation in such an experiment or even his knowledge thereof? Now, what did Rostock actually do during the war. He was the busy head of the big Surgical University Clinic in Berlin and also the dean of the medical faculty of the University of Berlin. Everyone agrees that he was an outstanding doctor and scientist. This is attested by his numerous scientific textbooks and other publications and the honors which he obtained for his ability, without any influence of politics or war. The picture which his associates have drawn from their close acquaintance with him and which represents him as a tireless helper of his patients, as a doctor who did not leave the clinic day or night during the worst air raids, so that he could help his patients and the newly admitted victims of the raids — this picture remains uncontradicted. How did this man come to be in the dock, and what remained of the Prosecution's supposed reasons for suspicion after the presentation of evidence? To sum up, there are three wider fields within which the Prosecution wants to connect the Defendant Rostock with the criminal experiments. First, during the war Rostock was a medical officer in the Germany army reserve and held the position of an adviser in the surgical field to the Inspector of the Army Medical Service. In this capacity Rostock heard the lecture of the co-defendant Gebhardt at a meeting of Consulting Physicians in 1943, together with over 100 other doctors. He heard a report about experiments which had long been completed, and, together with over 100 other prominent participants, he heard from the mouth of such a high placed man as Prof. Gebhardt that the legal aspect had previously been thoroughly clarified and did not have to be discussed. Rostock had no suspicion, any more than the other doctors present that there was any question of criminal actions.

In a later part of this statement, when dealing with the evidence, I shall explain exactly that nothing has been shown to prove a participation of Rostock in Gebhardt's experiments. It will be shown that he had no legal obligation to intervene, since his military and medical superiors were personally present at the same lecture.

Rostock continued to work as chief of his clinic, and it must be emphasized that this work became day by day more difficult, as the air raids on Berlin increased in 1943-44. Then, at the end of 1943, at the request of Karl Brandt, he attempts to establish a Department for Science and Research for the office of the Commissioner General for Medicine and Health. This opens the second field of indictment. At that time, it is true, the experiments under discussion here had for the most part already been ordered, begun, and carried out under various authorities. The Prosecution thinks, however, that the newly created office of Rostock now must have obtained knowledge of all these experiments, which were secret and which were carefully concealed from the public, What Rostock's motives were for the creation of the Department for Science and Research, he himself has convincingly explained in his examination. This uncontradicted testimony of his is of special importance in judging whether in view of the aims which he had chosen for his office, it had at all been possible for him to learn details of the research then going on. This was not within the sphere of duties of his office, nor was it possible from the point of view of personnel or time. Of special importance here are his statements about the background of the Department for Science and Research. The occasion for its establishment was defense against attacks on Germany's scientific research and doctrine by narrow-minded politicians. The resulting tasks were primarily in the direction of maintaining and expanding the facilities for research and teaching, without interfering in their details. Rostock's office began its practical activity only in February 1944. Anyone who knows conditions in Germany at that time can confirm what the evidence has clearly shown: that the attempt to coordinate and regulate science and research which was undertaken in the last chaotic year of war bogged down shortly after it began.

The third field which the Prosecution has brought up also deals with a secondary office which Rostock undertook in this last war year, 1944. Karl Brandt formally appointed Rostock his deputy in the Fraesidialrat (governing council) of the Reich Research Council. The picture given by the evidence must again be examined to determine whether Rostock, from this subsidiary office, gained knowledge of criminal experiments and thus at least became an accomplice of some experiments to be judged here. No document or witness was presented to prove that Rostock took any direct part in experiments through the office of the Reich Research Council, any more than in the other fields of indictment.

The Prosecution connects Rostock with the other defendants quite generally because of his position on the German health service. Here again, in the light of the evidence, we must examine whether there actually was any such connection.

I. The individual experiments with which Rostock is connected by the Prosecution.

1. Malaria Experiments.

I shall refer to them in the closing brief.

2. Lost Experiments (page 10 of the original. At the beginning Rudolf Brandt had stated in his affidavit (No 372) that Rostock had had knowledge of these experiments.

This statement he retracted in his affidavit Exhibit Rostock #8, as well as in his numerous answers during his cross-examination. The research assignments to Prof. Hirt originate with the Reich Research Council. It should be noted that they were issued before October 1943, at a time, therefore when Rostock had not yet been appointed deputy for the members of the Fraesidialrat (governing council) of the Reich Research Council Karl Brandt.

How far Rostock's knowledge — based on the assignment register of which he was in charge — of Hirt's rearch assignment went has been clarified in detail; namely, merely the fact that Hirt was working on the Lost problem but not the way in which he did it.

During the cross-examination by Mr. McHaney document No 692, Prosecution Exhibit 457 was shown to Rostock. It contains a list, compiled by Rostock's staff on 14 Sept 1944, in which of 650 items 45 research assignments are marked as regarded essential for the war effort under the then prevailing war conditions. This Document also contains, among the assignments going to Strasbourg, the assignment to Haagen, Bickenbach and Hirt. Before as well as after submission of this document Rostock testified to the same effect namely, that he had received knowledge of these assignments according to the list but that he did not know that they were in any way connected with human experiments. This was also proved by the statement by Karlstetter as well as through the affidavits by Hegemann and Zettel.

That Rostock neither knew nor had to know the details of these experiments becomes equally evident from the fact that the whole field of combatting Chemical Warfare Agents was not within the sphere of activities of the Office for Science and Research of which Rostock was the chief but came under the direct competence of the General Commissarat himself. This was clearly stated during the examination of Karl Brandt, when Brandt stated that his collaborators in this particular field were officials of the Speer Ministry, the Armament Testing Office (Waffenpruefungsant), and those gentlemen responsible for air raid precautions, and that Rostock and his office were not informed about these matters. This was furthermore proved by the affidavit by Mielenz, also by testimonies of the witnesses Christensen and Karlstetter who stated that there was no correspondence about matters of Chemical Warfare Agents.

This was again explicitly certified by Dr. Christensen when — during the cross-examination by Mr. Hardy he was asked about a possible correspondence with Prof. Hirt.

This is also valid as regards to the documents NO 1852 which were shown to Rostock during the cross-examination by Mr. McHaney. Here it is a matter of reports about Phosgene experiments which are addressed to Karl Brandt. Those reports are not addressed to Rostock as he stated in his testimony during the cross-examination, merely the fact that Rostock's office was situated next door to that of Brandt does not prove — as the prosecution implies — that he should have read all letters addressed to Brandt, even if he was not competent in the subject the letters dealt with. Every impartial judge must admit that this conclusion seems a little far fetched.

As, in spite of this the prosecution, during the cross-examination, have submitted these documents about questions of Chemical Warfare Agents to the defendants Rostock, it has to be stated that simply none of these documents contains an ever so tiny allusion to Rostock and his Office for Science and Research. None of the documents could change the impression, which Rostock made and which is: that he testified honestly and correctly before the Tribunal.

I shall come back to the Lost experiments in my closing brief.

From these statements it becomes evident that Rostock had nothing to do with the Lost experiments on human beings, under discussion, and that he did not even know anything about them.

3. Sulfonamide Experiments The prosecution did not contend that Rostock collaborated in these experiments.

On the other hand, Mr. McHaney said on 21 February, 1947, that he, Rostock, "knew, or was supposed to know about them." If by this is meant that Rostock was informed about these experiments together with more than 100 other prominent doctors, including his then military and medical chiefs, through a lecture by Gebhardt and Fischer, at the third congress of consulting physicians from 24 to 26 May 1943, which has been dealt with in detail here, then this must be admitted. But no punishable act can be seen in this alone.

If, on the other hand, the prosecution believes that Rostock knew about this lecture and the experiments carried out by Grawitz or Gebhardt which were the basis of his lecture beforehand, they are mistaken. The error is based on a statement by Gebhardt who during a pre trial-examination said that the lecture including reference material had been submitted to the medical authority who was in charge of preparations for the congress. Gebhardt had then assumed that this was Rostock, as he was the chairman of the special professional section surgery.

But evidence has proved that it was an executive staff consisting of medical officers of the Army Medical Inspectorate headed by the Chief Medical Officer (Generalarzt Schreiber) who was in charge of these preparations.

Rostock was not a member of this committee. Therefore the previous information went to Schreiber and not to Rostock as was certified by Gebhard in his examination. It is therefore proved that Rostock found out about these experiments for the first time on 24 May 1943 through this lecture of Gebhardt and Fischer; the experiments had been concluded when the lecture was delivered, otherwise the result could not have been reported about.

Through testimonies by Rostock, Handloser, Gebhardt and Fischer it has been unanimously clarified that Gebhardt as an introduction to Fischer's lecture said that these experiments had been carried out on persons who had been sentenced to death according to orders and who then had been pardoned.

There was no reason, neither for Rostock nor for the rest of the audience to doubt the truth of these introductory statements. Also, it was not within his competence to investigate details as to nationality, sex or legal reason and justification of sentence. It could be assumed that the persons sentenced to death had voluntarily applied to be used for experiments in order to evade death punishment, as has been stated by Rostock when he was asked about his impressions of Gebhardt's introductory remarks. All testimonies here prove unanimously that no information had ever been received to the effect that Polish women had been the experimental subjects.

Evidence has proved that Mr. McHaney's statements during the prosecution's case to the effect that the participants of the congress had "not only received information as to what was happening" but that they "had knowledge of what went on in the concentration camps" and that they knew the reports even before the time they were read are incorrect. Listening to a lecture is by no means identical with the participation in experiments which are the subject of the lecture.

There would also have to be some act of participation. This could perhaps consist of omission, if the listeners had a legal duty to act. Disregarding the fact that Rostock had no reason to doubt the accuracy of Gebhardt's statements, what could Rostock have done at the moment of Gebhardt's lecture by way of protest against the experiments, which were already completed? His immediate and supreme military and medical superiors were personally present at the lecture, and for that reason no reports to them were necessary.

The Prosecution itself, through Mr. Hardy, on 3 April 1947 acknowledged that it was necessary for experiments on human beings to be carried out. They said that in themselves they were not criminal. The indictment had been served not because of the human experiments themselves, but because of the criminal manner of execution of the experiments.

The necessary conclusion from this is that the knowledge of experiments on human beings alone is not punishable. As far as the Sulfonamide experiments are concerned, Rostock merely learned a little about the experiments that had been finished. He did not learn, however, that they had been carried out in a criminal manner, for example on non-volunteers. For he had to assume that the persons condemned to death had voluntarily accepted the chance for pardon, which was offered them. The Prosecution expert, Professor Ivy, expressly stated that one can hold the view that persons condemned to death can volunteer for medical experiments. In their final plea on 14 July, the prosecution stated through Mr. McHaney, that the views of Mr. Ivy were not only the views of an individual, but the views of the United States. Thus there is no charge against Rostock, according to the evidence, in the sulfonamide matter. Individual details will come up in my closing briefs.

4. Experiments for making sea-water drinkable.

These experiments were carried out at a time when Rostock was the Chief of the Office for Science and Research with the General Commissioner for Medical and Health.

Prosecution might have seen an incrimination of Rostock in the fact that Schroeder stated in his Affidavit NO 449 that Rostock had knowledge about research being carried out by the Luftwaffe. The evidence has proved, however, that Rostock or his office did not participate in the preliminary conferences to these experiments, because the list of participants and the minutes of these conferences were presented as document No 177. Schroeder in his affidavit, Exhibit Rostock 10, affirmed that Rostock in no way instigated or ordered these seawater experiments.

The research assignments distributed by the Medical Chief of the Luftwaffe in 1944 were reported to Rostock's office, and it might be concluded from this fact that Rostock therefore got knowledge of the experiments.

Becker-Freyseng in his cross-examination through Mr. Hardy had started that the Medical Inspector of the Luftwaffe certainly did not send any report on the seawater experiments to Rostock and that he was quite sure that Rostock had not been present at the final conference in the anti-aircraft shelter in the Berlin Zoo, when Beiglboeck made his report on the development and the result of the experiments. Again I would like to draw the attention of the Tribunal to this in my closing brief.

All this evidence proves beyond any doubt that Rostock neither suggested nor ordered the seawater experiments, that he did not actively participate in them nor gave any advice and that he did not even know anything about them.

5. Experiments on epidemic jaundice.

A similar request for the execution of such experiments was put before the Tribunal in the form of a letter by Grawitz of 1 June 1943. At that time Rostock's office for Science and Research with the General Commissioner for Medical and Health Service did not yet exist. Rostock himself stated that he did not get any knowledge of that letter at that time.

The Reich Research Council in 1943 gave a research assignment on hepatitis to Prof. Hagen. At that time Rostock did not yet belong to the Reich Research Council as a deputy of a member of the Praesidialrat (Governing Council).

The Prosecution probably bases the charges against Rostock on Rudolf Brandt's affidavit No. 371. This statement is contradicted by the same Rudolf Brandt, who in his affidavit, Rostock Exhibit 7 declares that he had no positive evidence for Rostock's knowledge of the experiments. In the re-direct examination through Dr. Vorwerk, Rudolf Brandt expressly withdrew his original affidavit made for the Prosecution. I don't consider it necessary to deal in particular with the probative value of Rudolf Brandt's incriminating evidence. Again I draw the attention to the Tribunal to the remarks in the closing brief.

Consequently, neither in field of sea water experiments did Rostock have any knowledge of the allegedly carried out human experiments and even less did he instigate, order or participate in them.

6. Typhus Experiments.

The evidence has proved that an institute for the production of typhus vaccines existed in the Buchenwald concentration camp under Dr. Ding and that typhus experiments were supposedly carried out by Dr. Ding in the Buchenwald concentration camp and by Prof. Haagen in the Natzweiler concentration camp. I will deal with each of these three points separately as to whether Rostock had any connections with them.

According to Mrugowsky's evidence the institute for production of typhus vaccines at Buchenwald produced these vaccines for the Waffen SS and the concentration camps. The office of Brandt and Rostock had nothing to do with the medical affairs of the SS.

Mrugowsky has described how the typhus experiments in Buchenwald came about. They were ordered directly by Himmler through Grawitz.

Rostock had in no way any thing to do with them, neither as an advisor nor as a participant. At the already mentioned third meeting of the Consulting Physicians on 24 — 26 May 1943 in the Hygiene Group Dr. Ding made a report on the results of the experiments. Rostock did not attend this conference, since he had to attend conferences on surgical matters that took place at the same time.

I now come to the typhus experiments of Haagen in Natzweiler. The Prosecution probably bases its charges as to Rostock's participation in these experiments mainly on the Affidavit of Haagen's secretary, Miss Eyer.

The Tribunal will recall that the witness, Eyer, a prosecution witness, during Mr. Hardy's examination, retracted her statement and said that she made a mistake and thought another Professor from Berlin, with the name of Ziess, to be Professor Rostock.

The typhus research assignment which Haagen received from the Reich Research Council was given by Sauerbruch. It was given at a time, namely in 1943, when Rostock did not even belong to the Reich Research Council as a deputy of a member of the Praesidialrat.

A report of Haagen to the Reich Research Council was put in evidence as document No. 138. When reading it, Mr. MacHaney said that the document ascertained the fact that the top representatives of the Reich Research Council had full knowledge of Haagen's work and its criminal nature. With regard to "the criminal nature" at least Mr. MacHaney, de facto, withdrew his assertion, when during the cross-examination on 21 February, 1947, he said that he did not believe that Haagen reported on his experiments in the concentration camp to the Reich Research Council. Therefore, one would not really have to discuss this point of the indictment any longer. However, Rostock himself stated that it may have been possible for him to have read Haagen's report at that time in the printed reports of the Reich Research Council. He said, however, that he had noticed nothing special, when reading it.

Rostock has dealt with the matter and I wish to call the attention of the Tribunal to the details within the closing brief. The same is valid for the paragraph "Biological Warfare and Polygol".

II. Rostock's Activity in the Organization of the German Health System.

Office for Science and Research The creation and the activity of the Office for Medical Science and Research with the Commissioner General and later with the Reich Commissioner for the Medical and Health System must be discussed more in detail.

First of all, the chart, Exhibit Rostock No. 1, illustrates the fact that Rostock prepared himself for the position only from autumn 1943 and was not actively engaged in his job before the middle of February 1944 and then only as a secondary position besides his regular duties. Service in this position demanded only thirty percent of his working time.

In the opening statement, General Taylor said that the Reich Commissioner for the Medical and Health System was to be regarded as the highest Reich authority. The emphasis on this word is confusing and contradicts the authentic document NO-82, which states, "In this capacity his agency is highest Reich authority." In this decree, then, the word "the" is missing. But this is most essential. For the decree signifies that it is one of many "highest Reich authorities", whereas the type of expression chosen by General Taylor must lead one to conclude that it was the only "highest Reich authority" in the Department of Health. But, as evidence has shown, this was not true.

Without a doubt, the prosecution has gained the wrong impression of the extent, actual activity, and influence which the Office for Science and Research had on other agencies. Rostock has dealt with this question in detail during direct examination. The Tribunal will certainly still have a recollection of his statements. Rostock actually had no supervisory authority over research work of the branches of the Wehrmacht and the SS.

Brandt's, and thus also Rostock's, commission comprised not all medical affairs, but only special tasks as was testified quite clearly here by the witness Lammers. The assignment given to Rostock did not include supervision of practical research.

The relationship of Rostock's agency to the SS must be discussed briefly, for all experiments which play a part in these proceedings were, after all, carried out in concentration camps which came under the jurisdiction of the SS. Rostock himself was never a member of the SS. He also had, apart from that, no other relations of any kind with the SS. When the agency of the Commissioner General for the Medical and Health System was ordered, Hitler, in the presence of Himmler, made it quite clear to Karl Brandt that in his (Karl Brandt's) capacity of Commissioner General the SS was not his affair. The practical execution of this directive has been expressly confirmed by Genzken. Furthermore, the decree of 25 August 1944, which lists the agencies to which the Reich Commissioner for the Medical and Health System could give directives, does not mention the SS.

Gebhardt has testified on 3 May that Grawitz was never subordinate to Karl Brandt and that Brandt never even had the right to give directives to Grawitz. He testified further that Himmler wanted to create a "Science exclusively for the SS" and that university people had resisted that attempt. However, Rostock must quite definitely be considered an exponent of university scientists. The proof for the correctness of Himmler intention with a "science exclusively for the SS" can be seen from a letter which SS Gruppenfuehrer [General] Berger wrote to the Reichsfuehrer SS on 22 September 1942.

This should furnish sufficient proof that Rostock had no influence on research activity within the SS or the concentration camps. It has already been pointed out, when the individual experiments were discussed, that he did not even have any knowledge of them.

In regard to research commission assignments to the Medical Chiefs of the Luftwaffe, Schroeder had asserted that all research assignments had to come through Rostock's office.

Schroeder has testified in his affidavit, Exhibit Rostock No. 10, that this was an erroneous description. For it had only been agreed that a carbon copy of the research commission which had been assigned would be sent to Rostock. His approval for the assignment of the commissions was by no means required.

Reich Research Council And now I would like to turn to the complex of problems connected with the Reich Research Council.

Here the prosecution has charged Rostock with responsibility because from the beginning of 1944 he was Brandt's deputy in his capacity as a member of the Presiding Council of this body. The fact itself shall not be denied, but the responsibility shall, mainly from a view of penal law as well as of morals. I deny the assertion of the prosecution, which has been summarized by Mr. McHaney on 10 December 1946, that Rostock exercised a "supervisory control" over the Reich Research Council, or, on the occasion of submitting a letter of Rascher about freezing experiments that "the Reich Research Council as a whole is implicated in a criminal manner".

The problem of the Reich Research Council has certainly been thrown light upon during the testimony of Karl Brandt, Rostock, Blome, Sievers, as well as by the affidavits of Mentzel, the chief of the Managing Committee of the Reich Research Council. As the crux in this connection emerges the fact that those responsible for the distribution of research assignments were, exclusively, the managers of the Special Sections and their authorized agents and subordinates, who, in turn, were directly subordinated to Hermann Goering. Rostock was not among them. The members of the Presiding Board had no supervisory duty over and no right to issue directives to the managers of the Special Sections.

Here again I would like to call the attention of the Tribunal to the closing brief:

III. Conspiracy

Even if the concept of "conspiracy" is rejected in principle, we must still discuss shortly here for the acts of which men and agencies Rostock can he held responsible, i.e. for those which were subordinate to him and which he supervised.

He had no subordinates in his position as Consultant Surgeon to the Medical Inspector of the Army. He merely was the "consultant" of his Inspector and his staff. If this agency had ordered the commission of criminal deeds to which Rostock in some form had given his advice, then one might, perhaps, construe an accessory guilt of Rostock. But in none of the cases under discussion here the experiments were ordered by the Medical Inspector of the Army. In his position as Chief of the Office Science and Research with the General Commissioner for the Medical and Health Services Rostock had four medical assistants and three or four typists as subordinates for whose official activities he bears responsibility. None of these persons in any way, either directly or indirectly, participated in the experiments we discuss here. None of these experiments was ordered by this agency or even suggested. The peculiar manner of conducting these experiments was unknown. It was known neither to Rostock nor to his assistants, as has been proven by the conforming testimony of all his assistants.

Rostock had no official supervisory duty over and no right to issue orders to the persons who ordered and conducted the experiments. The barriers which were constructed around the concentration camp were just as impenetrable and just as opaque for him and his assistants as they were for the great majority of the German people.

Also, nothing has been brought out by the submission of evidence which would permit to conclude the existence of a common plan as asserted by the prosecution, inasmuch as a definite, firmly outlined plan among a narrow circle of persons which always remains the same is understood by that expression. On the contrary, very frequently during the course of the proceedings we heard of the strong forces within the leading circles of Germany which strove to different goals, as testified by prosecution witnesses as well as by the defense. With reference to the leaders of the Medical Services let me only point to the differences between Conti and Blome, to quote an instance.

There is no need to go into the details of this. But considering this special case, let me emphasize the differences which have repeatedly been discussed during the submission of evidence — I mean those differences between Conti and Grawitz on the one hand, and Karl Brandt on the other hand. These, of course, had their effect on the subordinate agencies, too. I also want to point out the opposition of the SS to Karl Brandt's agency.

IV. Control Council Law No. 10

I do not intend to repeat the actual text.

I only want to make a remark to the individual paragraph, Article II, 2a. I may add the following details with reference to the defendant Rostock:

a) The prosecution did not allege that Rostock can be regarded as a principal of one of the experiments II 6 A — L. The evidence also shows that Rostock never conducted one of the experiments discussed here.

b) Neither was he "an accessory to the commission of any such crime" nor did he "order or abet the same". In every individual case the evidence could show who gave the order to conduct the experiments. As far as they were assignments of the Reich Research Council, it was made clear by the testimony of the defendant himself as well as by Blome's and Sievers' testimony and the Mentzel affidavit that Rostock in his capacity as deputy of a member of the Presiding Board of this body had no influence on the distribution of the research assignments. In addition, they were all issued at a time when Rostock did not yet belong to the Reich Research Council.

Rostock did not "take a consenting part in" one of the experiments. As discussed at great length in the first part of my closing speech, he didn't even have knowledge thereof. Of the sulfonamide experiments he, and numerous other physicians, became aware for the first time by the lecture of Gebhardt and Fischer at the meeting of the Military Medical Academy on 24 May 1943, and this was only after the experiments had already been concluded. Not even interpreting this extensively one can judge this as "taking a consenting part therein". Moreover, there would be no room for such an interpretation, since a criminal character of the experiments was not recognizable for Rostock.

d) In no single case was Rostock "connected with plans and enterprises", as I have already set forth in detail.

e) All the experiments were conducted in concentration camps. These were under the jurisdiction of the SS. Rostock never was a member of the SS nor did he maintain official contacts with them. Therefore, Rostock never "was a member of any organization or group connected with the commission of any such crime".

Summing up, we arrive at the conclusion that not one of the facts which Art. II, 2, A — E of Control Council Law No. 10 demands in order to deem a person guilty of having committed a war crime or a crime against humanity applies with reference to Rostock.

Relying on testimony which has been refuted since then, the prosecution could assert again and again that Rostock by virtue of his position should have known of these events. This assertion was never proven by the prosecution. The findings of the trial judge must not, however, rely on a fiction, but only on factually proven events and acts.

V. Conclusions

Mr. President, Your Honors:

If, at the conclusion of my examination of the evidence, I appeal once more to your sense of justice. I do not do so because I doubt the positive result of the presentation of evidence. I shall therefore expressly and consciously not refer to the saying: in dubio pro reo, because I am of the opinion that the presentation of evidence has brought absolute clarity in every respect in favor of Rostock's acquittal.

Nevertheless I should like to ask the High Tribunal to take into consideration certain minor external matters which may not be without serious consequences. From all your previous decisions we have been able to feel your efforts to be the utmost fair and just. It is therefore my conviction that this High Tribunal will adjust inequalities where it senses them.

It seems to me that for this Tribunal, which comes from a country with a parliamentary and democratic government, it is very difficult task to realize how here in Germany during the war the struggles for power of individual groups developed to a grotesque extent under the cloak of ostensible unity. Rostock rightly referred to this in his examination. Germany was ruled by a suspicious dictator, who was a master at playing one against another. The more desperate the situation became, the oftener he had recourse to the method of appointing more and more plenipotentiaries general, commissioners general, and similar titles. But at the same time he left the existing competencies entirely or in part untouched, so that a chaos of competencies developed. In this respect the international Nuremberg trial brought to light numerous examples. Brandt's appointment as commissioner general is to be evaluated in this sense. Beside him there remained the competencies of Conti and the Chief of the Medical Service of the Wehrmacht branches.

Above all Hitler refrained from interfering in Himmler's or Grawitz' sphere. All too often in the Third Reich as in this case — a high-sounding title concealed deliberate or accidental confusion of competencies. When Karl Brandt called on Rostock for assistance, he did not present him with a clearly defined program, because he himself had not received one. Thus Rostock, who came from the clear air of purely scientific medical work, could assume that he could do some good trying to maintain German medical science and its foundations over the period of the collapse. How difficult this decision was for him, which implied giving up other scientific work, Rostock has already convincingly described for us. After seeing the evidence, we can believe him and his associates when they say that he or they had no knowledge of the crimes previously committed in Germany in the field of practical research.

It was possible even to indict a man like Professor Rostock for conspiracy and the commission of war of war crimes and crimes against humanity only because the Prosecution did not consider or did not know the personality of Rostock and was not able to get a true picture of all the circumstances. Only very few people, who lived in Germany during the war, knew the conditions and the divisions of power, the struggles for power and the silent intrigues of those groups who had the whip in the hand, and the numerous iron curtains before agencies and institutions which all concealed and guarded their work jealously. How much more impossible was it for a foreigner, when the indictment was served, to judge correctly these confused conditions in Hitler Germany. Such a correct judgment would, however, be the prerequisite for an indictment properly founded from the factual and the legal point of view. I am of the opinion that the Prosecution faced a task which was difficult to perform.

While the Prosecution has, during this trial, submitted many documents which testified to the contempt or the indifference of the authors to the life and fate of to her human beings, no documents have been submitted which show Rostock's work and thought.

Since all archives and documents centers are exclusively in the hands of the American Prosecution authorities, the Defense is at a disadvantage here. The entire correspondence of Rostock's office has been confiscated by the Americans. I may at least point out at this point that if there were any document there which threw even the slightest shadow on Rostock's character, it would have been presented here. Thus I can state: There is no such document from the hand of Rostock. The simple reason for this is that Rostock simply had no knowledge of any crimes nor did he participate in them in any way. If the Defense, were able to present Rostock's files and letters from that time to the Tribunal, we would find therein many statements by Rostock which would show his ideal efforts in the service of his science and his patients. It would become obvious that Rostock in conduct and character was one of us who believe in the progress of humanity through kindness, mutual respect, and tolerance.

Only the detailed presentation of evidence in this trial has brought clarity. As I have explained, it has shown the complete innocence of the Defendant Professor Rostock. The unjustified indictment means for him the most serious defamation in his position in society and in science.

I should here like to call the attention of the Tribunal to one point in which view point and effect on the public in America and Germany differ. In contrast to the American procedure, in German criminal procedure a trial is opened for such crimes as are under indictment here only when the prosecution material has already been examined by a court officer. This is the institution of the so-called examining judge, who, in major cases, decides when a court trial is to be opened. For all crimes there is also a judicial examination of the prosecution material before the court trial opens, and only when there are strong grounds for suspicion is the trial opened for judicial decision.

This procedure brings it about that the public can assume in such trials that the indictment is, with a high degree of possibility, based on fact. This means that for a man who has once been involved in such a trial it is later extremely difficult to find honor and respect among his fellow citizens. The defendant Rostock would therefore be grateful to you, Your Honors, if in the formulation of your judgment you could help to make it possible for him to resume his place in the circle of respected persons.

With the pride of a clear conscience and with confidence Rostock awaits the judgment of this Tribunal. According to the results of the presentation of evidence, I am convinced that it is my duty to ask that Professor Paul Rostock be fully acquitted.

THE PRESIDENT: Before proceeding with further argument the Tribunal will be in recess.