1947-07-16, #1: Doctors' Trial (early morning)

Dr. Seidl, counsel for defendants Karl Gebhardt, Herta Oberheuser, and Fritz Fischer, concludes his closing arguments

Official Transcript of the American Military Tribunal in the matter of the United States of America against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 16 July 1947, 0930, Justice Beals presiding.

THE MARSHAL: Persons in the court room will please find their seats.

The Honorable, the Judges of Military Tribunal I.

Military Tribunal I is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.

THE PRESIDENT: Mr. Marshal, will you ascertain if the defendants are all present in court.

THE MARSHAL: May it please your Honors, all the defendants are present in the court.

THE PRESIDENT: The secretary-general will note for the record the presence of all the defendants in court. Counsel for the defendants Gebhardt, Fischer and Oberheuser may proceed with his argument. Counsel, you have one hour and 40 minutes remaining for the presentation of the arguments on behalf of your three clients. You may proceed.

DR. SEIDL (Counsel for the Defendants Gebhardt, Fischer and Oberheuser): Your Honor, if you would take up now my final plea for the Defendant Herta Oberheuser you would find in the index that it consists of 10 points. Point 1, which deals with Count I, I do not have to deal with here after the Tribunal has already decided about the count of the common plan or conspiracy. Supplementing what I said about this count, referring to the Defendant Gebhardt, I should like to add that my final plea for the Defendant Gebhardt, contains a few statements which deal with the Law #10 of the Control Council and I would like to ask the Tribunal to take note of these statements. I shall permit myself to add something to this point in a supplement which I shall submit to the Tribunal.

THE PRESIDENT: Counsel may submit the supplement he requests.

DR. SEIDL: I now come to point 3 of my final plea for the Defendant Herta Oberheuser which deals with the selection of experimental subjects. I can say here conclusively as a result of the evidence that the Defendant Oberheuser had nothing to do with the choice of the experimental subjects, that that was merely a matter of the organization of the Reichs Security Office or at least the political department of Camp Ravensbruck.

Number 5 of my brief deals with the treatment of experimental persons after surgical operation and this point deals with it from the legal point of view. The Tribunal will find this on page 13 of the English copy. Although the defendant Herta Oberheuser did not participate in the carrying out of the operations, she did attend to the experimental subjects under the direction of defendants Karl Gebhardt and Fritz Fischer insofar as the latter did not do this themselves. The evidence proves that especially the defendant Fischer in most cases carried out the postoperative treatment of the experimental subjects and especially the changing of the bandages and applications of new plaster casts. The activities of the defendant Oberheuser were limited mainly to the distribution of the various Sulfonamide preparations and the administering of pain-relieving preparations. She carried out the orders given her in this connection and did not develop any independent activity in connection with the post-operative treatment.

When reviewing the results of the hearing of the evidence, it can be said that the defendants Gebhardt and Fischer as well as the defendant Oberheuser did everything to keep the damage to be expected, as low as possible and to avoid fatalities. This is especially true in the case of surgical measures, which had to be taken to fight wound infection and particularly gas gangrene. These operations and treatments had to be carried out for the sake of the experimental subjects. These operations were, therefore, not carried out for experimental but for curative purposes. The defendant Oberheuser did not take part in these operations, but merely took over the post-operative treatment to an extent which I have already described. But what is true with regard to the post-operative treatment is true to an even higher degree regarding her activities concerning purely conservative medical treatment such as the administration of preparations in the treatment with analgesics and the changing of dressings.

For, the defendant Herta Oberheuser, by taking over the postoperative treatment after the experimental operation was carried out and on which she had no influence at all did not accept any responsibility for the experiment as such. She would not have been asked to carry out the post-operative treatment, if her ward had not happened to be next to the large operating theater in the hospital of the Ravensbruck Camp. Therefore, her actions can only be judged according to the regulations for professional conduct during curative treatment. The hearing of the evidence has given no final proof that the defendant intentionally or carelessly violated any of the professional rules generally recognized in medicine. It is correct that in some of the sworn affidavits presented by the prosecution in Document Book 10, the defendant Oberheuser is accused of having neglected the care for the experimental subjects.

In another connection I have already pointed out that these sworn affidavits are mainly founded on conclusions and also repeatedly contain allegations which are founded merely on hearsay. But these allegations are definitely contradictory to the statement of the witness Dzido and the statement which was given by the witness Margareta Mydla in her sworn affidavit (Exhibit Oberheuser No. 1). Especially this latter affidavit which was not contested by the prosecution, clearly proves that the defendant Oberheuser did everything within her power to help her patients if possible, and that in spite of the most difficult conditions she tried to treat patients in accordance with the principles generally recognized in medicine.

The presentation of evidence has, therefore, given no proof that the activity which is specified as "post-operative treatment" presents the set of facts necessary for conviction under any criminal law.

The same applies to the few deplorable, fatal cases which occurred in connection with the sulfanilamide experiments. With regard to the details I refer to the statements of the defendant Karl Gebhardt in the witness stand and my own arguments made in evaluation of the evidence on this Count in the case of the defendant Karl Gebhardt, and which will be supplemented in the closing brief. The hearing of the evidence has shown that the defendant Herta Oberheuser can not be blamed in any way for these three fatalities. She reported to her superior camp physician and the local medical officer whenever the symptoms of the disease gave rise to any doubt and also caused the defendant Dr. Karl Gebhardt or another medical officer of the Hohenlychen hospital to be called in. The defendant Herta Oberheuser could not do any more. If, despite all that, some cases resulted in fatalities it was obviously not due to anything the defendant Oberheuser had done or failed to do. In any case, the hearing of the evidence has not given a definite proof for the presence of such a casual connection, nor has the evidence given any facts which would prove that the defendant acted carelessly and therefore criminally.

The importance of Count 4 of my brief seems to me to make it necessary to read this part into the record.

It is the preliminary examination of the experimental subjects which also was carried out by the defendant Oberheuser. I would ask the Tribunal to look for this on page 8 of the original.

The evidence has shown — and the defendant admitted it herself as witness on the stand — that she carried out the preliminary examination of the experimental subjects before the surgical operation and that she determined whether or not they were fit for an operation. Of what did this preliminary examination consist? From the defendant, Herta Oberheuser's own statement it can be seen that the examination consisted of examination of the experimental subjects for skin diseases and of a check-up of the heart and lungs. Furthermore, X-ray photographs were taken. However, the defendant Oberheuser had nothing to do with the evaluation of these. The examinations carried out by the defendant Oberheuser consisted therefore of nothing else but the application of examination methods which are customary before every surgical operation, even the smallest.

We have to add here that all these operations necessitated administration of a narcosis and, for this reason, this preliminary examination seemed most necessary.

From these facts the following legal conclusions can be drawn: In the evaluation of the evidence in the case of the defendant Karl Gebhardt I have already explained the reasons which inevitably bring about the adoption that for the legal consideration of the defendants' actions only that law, which was valid at the time of the deed, can be applied. They lived under this German law and were bound by the regulations of this legal system. If these basic legal principles are applied, which generally confirm with the principles of the penal law of all civilized nations, the conclusion should be drawn that the preliminary examination, as carried out by the defendant Oberheuser could only be considered criminal if she had the intention to support these experiments with the examinations.

This question must be answered in the negative. The task of the defendant Oberheuser consisted exclusively of the examination of experimental subjects selected by another office, and to separate and return those who, according to her medical conviction, were not fit for even an insignificant surgical operation. In view of the fact that she did not take part in any of the preliminary discussions nor was she informed of any of the medical deliberations in connection with these experiments — also proven by the evidence — it appears quite improbable that she herself wanted those experiments or that she had the intention of supporting these experiments in any way that could be considered criminal. According to the results of the evidence and especially in view of the coinciding statements of the three defendants themselves it must be presumed that the intentions of the defendant Oberheuser regarding these preliminary examinations were concentrated only on the desire to eliminate people who were physically unfit. This and only this was her intention. Where it was not possible to find such physical defects and to prove them objectively and to return the prisoners on the grounds of these findings, the defendant had no influence upon the further procedure. According to the coinciding statements of the defendants and especially the defendant Oberheuser's own testimony it must further be presumed that she did not want to have anything to do with the experiments as such, for the sole reason that she had more than enough to do with her own patients, who required extensive specialized treatment, and she could only have the one desire not to be burdened with further duties in addition to her original assignment.

According to the facts it also appears completely out of the question that the defendant Oberheuser supported in any way whatsoever the decision to carry out these experiments, neither in the case of the defendant Karl Gebhardt nor in the case of any other person connected with these experiments, thus that any psychological assistance for the purpose of backing the intention of the principal defendant existed.

The result of the evidence in this direction is completely unmistakable and I refer particularly to the statement of the defendant Karl Gebhardt in the witness stand.

In these circumstances it is difficult to understand what exactly should constitute a "promotion" of these experiments. The defendants had no "intent" to promote the principal crime and she actually "did" not promote it. The charge of attempted aiding and abetting in the meaning of the German Criminal Law must be eliminated for lack of an "intent" to that effect.

But one arrives at the same conclusion also if one applies the Participation Clauses of Control Council Law No. 10 to the conduct of the defendant Oberheuser. Here too a commission or omission can only be considered legally important insofar as the participant or assistant was guided by the intent to support the crime of the principal criminal or to promote it by any other means. If this intend was lacking the actions, too, are legally unimportant even under application of Control Council Law No. 10. In judging the action of the defendant Oberheuser the Court will also have to take into consideration the fact that the sulfonamide experiments in the Ravensbruck Camp were not carried out by some unknown doctors, but that a physician of the caliber of the defendant Karl Gebhardt was responsible for these experiments. The defendant Karl Gebhardt was Professor of Surgery and a doctor who was highly respected far beyond the boundaries of the German Reich. Beyond this he was the physician in charge of a large clinic which was located in the immediate vicinity of the Ravensbruck Camp and although the defendant Herta Oberheuser as specialist for skin and venereal diseases had no special knowledge of the leading doctors in this field, it is, on the other hand, clear beyond a doubt, — from the presentation of evidence and especially from the testimony of the defendant Oberheuser herself, — that the defendant Karl Gebhardt was for her a medical authority of the first rank; and, if it were only for this reason, it must be held completely impossible that she in any legally important way could even have considered to fortify or strengthen the decision of the defendant Karl Gebhardt, to carry out these experiments which he himself conducted only in compliance with orders given him.

By examining the experimental subjects she merely carried out her orders and did nothing which could rightly be called a consequential promotion of these experiments. Her position in the Camp and in connection with the experiments was so inferior that the intent to promote these experiments through personal decisive activities must be ruled out completely.

Add to this that any doubts about the legality of these experiments must have faded out before the reputation of the defendant Karl Gebhardt as a physician and surgeon, when the defendant Herta Oberheuser observed that the defendant Karl Gebhardt started to carry out and supervise these experiments personally and that he did not entrust the continuation of these to one of the doctors of the Ravensbruck Camp but to one of the best doctors from the hospital in Hohenlychen.

I now come to point #6 of my plea, which is on page 16 of the original. It deals with the scientific evaluation of the experiment and the report on the result of the experiments as given at the meeting of the Consulting Specialists in Berlin in May, 1943.

The presentation of evidence has not only proved that the defendant Oberheuser was in no way connected with the preparatory discussions of these experiments and the decisions which led up to the sulfonamide experiments, but, furthermore, that the defendant Oberheuser had nothing to do with the scientific exploitation of the experiments and with the publishing of the results. The scientific utilization of the result of the experiment was done exclusively by the defendants Karl Gebhardt and Fritz Fischer.

The report on these experiments was also made exclusively by these two defendants. The defendants Herta Oberheuser was not even present at the session of the consulting specialists in Berlin in May 1943 and only learned about this report afterwards. These facts also clearly reveal that it was only by accident that defendant Oberheuser participated in the sulfonamide experiments and that her actions were not prompted by any scientific or other interests she may have had, but were exclusively caused by the fact that she was working in the Ravensbruck camp at the time when these experiments were carried out.

(7) Acting on orders.

I have already stated that with the lawful consideration of the attitude of the defendant Herta Oberheuser in connection with the sulfonamide experiments, all the reasons for the exclusion of injustice and guilt should also be taken into account, which I have already gone into in the case of the defendant Karl Gebhardt. This applies particularly also to the reason for the exclusion of injustice as far as the consent of the experimental subjects is concerned and the reason for the exclusion of guilt in the erroneous acceptance of such a presumed consent. Furthermore, all those facts have to be considered which justify the assumption of a state of war emergency. The defendant Oberheuser can in particular allege that she had acted on orders, and that for this reason her conduct would either not be punishable at all, or that it would be at least justifiable to acknowledge this fact as mitigating to a considerable extent. Defendant Oberheuser did not find herself the object of military subordination. However, a few months after joining the administration of the Concentration Camp Ravensbruck as camp doctor, she was sworn to duty by decree of the competent authorities. The fact of this compulsory service called for a much stricter condition of subordination and obedience than the principles of the general labor law had been applied.

It must be added that the type of organization in a concentration camp differed only very little from that of a military service. Defendant Herta Oberheuser was not less bound to the orders she received than any other member of the SS or of the administration of the camp at the Concentration Camp of Ravensbruck; consequently — just because she was a woman who naturally could assert herself even less than a man the reason for the exclusion of punishment or for mitigation of punishment should at least be recognized to the same extent as in the case of defendant Fritz Fischer, since she acted on orders. I shall deal separately with the legal questions arising from these proceedings when evaluating the evidence for the case of the defendant Fritz Fischer.

I should like to ask the Tribunal to take note of numbers 8 and 10. I need not go into detail about point 9 now, as the prosecution in their closing brief took that into consideration against defendant Oberheuser as to participation in sterilization experiments.

I now come to the case of the defendant Dr. Fritz Fischer. The index to the plea on behalf of this defendant shows that my statements contain eight points.

Point 1 deals with Part I of the indictment, common design or conspiracy. As the Tribunal has decided to withdraw this charge, I do not need to deal with the point.

I should like to ask the Tribunal to take note of Counts II and III and also Points 4 and 5, and I now come to Point 5, which deals with the justifications of the defendant Fischer, as well as the defendants Gebhardt and Oberheuser, acting on orders. This point is on page 7 of the original document, on page 9 of the English copy.

The defendant Fischer participated in the experiments for testing the effect of sulfanilamide upon orders of his medical and military superior Karl Gebhardt. It is recognized in the Penal Code of all civilized nations that action upon orders represents a reason for exemption from guilt, even if the order itself is contrary to law, but binding for the subordinate. In examining this legal question one proceeds from the principle that the Court disregards the reasons of justification and exemption from guilt put forward by me in the case of the defendant Karl Gebhardt and considers that both the order given to the defendant Karl Gebhardt himself, as also the passing on of this order to the defendant Fritz Fischer, are contrary to law.

The adherence to a binding order, even though it be contrary to law, on the part of the subordinate creates for him a reason for exemption from guilt and, therefore, renders him also exempt from punishment. This question is disputed only insofar as some consider the action of the subordinate not only excused but even "justified". Further examination of this question at issue seems, however, not necessary in these proceedings, since the result is the same in both cases, namely, the perpetrator's impunity.

The decisive action in the case on hand is, therefore, whether and in how far the "order" for the sulfanilamide experiments was binding for the persons carrying it out.

In view of the fact that, in principle, the law in force at the time is applicable, as the defendants lived under this law and it was binding for them and the application of a law which became effective later would violate the principle "nulla poena sine lege", the question is therefore to be examined within the framework of Article 47 of the German Military Penal Code.

I draw the attention of the Tribunal to the point that I shall come back to this in the supplement to my final statement.

According to the Paragraph 47 of the German Penal Code a subordinate who obeys is liable to be:

punished as an accessory, if it is known to him that the order given by the superior concerned an act which has for its purpose the commission of a general or military crime or offense.

However, it is not correct, as is sometimes accepted, that Article 47 of the German Military Code itself settles the question in how far military orders' are either binding or not binding. This is a question of public and administrative law. But it must always concern an "order regarding service matters", the same as in other military conditions, that is to say, something which "is inherent to military service". These assumptions are immediately present both in the case of the defendant Karl Gebhardt and in that of the defendant Fritz Fischer. Both were medical officers of the Waffen-SS; therefore a unit of the German Wehrmacht in which especially the principle of obedience was strongly pronounced. Karl Gebhardt was Fritz Fischer's immediate superior; in matters of duty his order to assist with the medical experiments to be undertaken was a binding order for the young medical officer Fischer.

In the investigation of the legal questions resulting from these circumstances, we will separate the case of the defendant Karl Gebhardt, where the "order" was issued from a very high authority — namely, from the head of the State and the Commander-in-Chief of the Wehrmacht from the case of the defendant Fritz Fischer, in which there is a question of an especially close relationship to his immediate military superior.

Later I will return especially to the general questions of public law concerning the command of the Fuehrer.

a) The evidence has shown that the order for testing the effectiveness of sulfanilamide proceeded from the highest authority, namely, from the Commander-in-Chief of the Wehrmacht personally, The reasons of justification of the probable acceptance of the wartime state of emergency and the balancing of interests, as discussed fully already in the investigation of the case of the defendant Karl Gebhardt, gain importance independently first in the person of the defendant Fritz Fischer. But they have influence, of course, on the legality or illegality of the order. The investigation of this question has shown that the given order as such was legal. Even if one would not want to take this for granted, however, for a subordinate even an illegal order of binding nature is of moment.

Article 47 of the German Military Penal Code, as already observed, lets the punishment of the subordinate stand if "it was known" to the latter that the order of the superior "concerned an act which had for its purpose the commission of a general or military crime or offense." In all other cases the punishment touches only the commanding superior.

Just as in most military courts of other armies, the administration of justice re Article 47 of the German Military Penal Code also shows the tendency to a vast limitation of the penal responsibility of the subordinate. That this tendency has grown from the purpose "of guaranteeing the performance of the duty of obedience obligatory to the subordinate, in the interest of military discipline and the Wehrmacht's constant readiness for battle," changes nothing in the fact as such. Here it is a matter of evaluating the legal position at the time the act was committed.

Article 47 of the German Military Penal Code establishes a penal responsibility on the part of the subordinate only if it was "known" to him that the order concerned an act "the purpose" of which was a crime or an offense.

The German administration of justice demands in addition a "definite knowledge" on the part of the acting subordinate; accordingly, cases of mere doubt (conditional intent) or mere obligation to know (negligence) are expressly excluded. Neither is the idea satisfactory that the performance of the order resulted objectively in the committing of a crime or an offense. On the contrary, the superior must have intended this, and this fact must have been known to the subordinate.

In applying these principles there cannot be any doubt that these suppositions were not fulfilled either in the case of the defendant Karl Gebhardt or in the case of the defendant Fritz Fischer — to say nothing at all of the defendant Herta Oberheuser. Both of these defendants regarded the order given them by the head of the State as a measure of war which was conditioned by special circumstances caused by the war itself, and by means of which a question should be answered which was of decisive importance not only for the wounded, but beyond that, should furnish a contribution in the struggle for the foundations of life of the German people and for the existence of the Reich. Both defendants were convinced at that time that the order given them should have any other purpose but the committing of a punishable crime.

b) Then, in regard to the particular position of the defendant Fritz Fischer, the meaning of an order of the "immediate military superior" is to be investigated. At the beginning of the experiments, the defendant Fritz Fischer had the rank of a first lieutenant. He took part in the experiments at the direct command of his military and medical superior who held the rank of general. In view of the surpassing authority of the defendant Karl Gebhardt, as surgeon and chief of the clinic Hohenlychen, and his high military position, a refusal was completely out of the question.

On principle, no other points of view but those already discussed apply here either. Whether the order is a direct or an indirect one offers no reason for difference. In the case of the defendant Fritz Fischer, however, the following is still to be considered: whether it "was known" etc. to the subordinate is always to be especially examined according to the special circumstances of the moment. At the same time, of course, a decisive part is played by the fact that the order for these experiments was given to the defendant Fritz Fischer, not by a military superior who would not have been in a position or duly qualified to give an expert decision of this question, but by a person who not only occupied a high military rank but beyond that had just that particular experience in the sphere in which the experiments were to be carried out. The defendant Karl Gebhardt was not only a recognized and leading German surgeon, but he had also as consulting surgeon to the Waffen-SS and as chief of a surgical reserve combat unit acquired special experience in the sphere of combat surgery and in the treatment of the bacteriological infection of wounds. The reason for this order given to the defendant Fritz Fischer by his chief must have affected him all the more convincingly as it coincided exactly with the experiences which the defendant Fritz Fischer himself had gained as medical officer with the First SS Armored Division in Russia.

In addition, there was the special framework in which all this took place: Fritz Fischer had been released from the combat unit on account of serious illness and had been ordered to the Hohenlychen clinic. He was under the immediate impression of hard experience at the front. In Hohenlychen he found himself in a clinic which operated in peacetime conditions under the energetic direction of a man extraordinarily gifted in organizational and scientific matters. Every building, every installation of this recognized model institute, the numerous clinical innovations and modern methods of treatment, every one of the many successful treatments of Hohenlychen was inseparably bound up with the name of the chief physician Karl Gebhardt and gave unconditional and unlimited value to his word and his authority in his entire environment.

For all these reasons the defendant Fritz Fischer can have had no doubt at all but that the performance of the order given him was from the medical standpoint a requisite and permissible war measure.

Precisely the open carrying out of the individual experimental measures, with the exclusion of every duty of secrecy, as well as the report of the results which was provided for in advance and also executed before a critical forum of the highest military physicians, were especially suited to nip in the bud any distrust of the justification of these experiments in the mind of the defendant Fritz Fischer.

Even if the defendant Fritz Fischer still had any last personal doubts, his opposition and subsequent refusal would under the circumstances have been just for him neither practicable, nor could it be expected of him.

The defendant Fritz Fischer has himself in the witness box explained his attitude towards military orders. The personal military service of the defendant in the front line, and his own serious war injury, are proof that his idea, that it. is necessary in wartime to subordinate the individual to the common interests and the unconditional submission to military orders, is not an empty phrase to him but his sincere conviction and moral standard.

There is also an undeniable difference between the cold juristic view of an abstract military order, and the personal attitude of a man who had quite recently in his own experience seen thousands of young soldiers die for their fatherland while obediently executing a military command, and who is also in his heart prepared to make the same sacrifice for his fatherland. If we, furthermore, consider that in our case a 29 year old first lieutenant and assistant physician was confronted with the strict order of his superior general who was at the same time a scientific authority in the special research field, and who, on the whole was a strong personality with unusual influence, we cannot expect that the defendant Fritz Fischer could have opposed and refused the order.

In judging these facts of the case we must not proceed without stating that the action of the Defendant Fritz Fischer was not the essential reason for executing the facts with which he is charged in the Indictment. If the Defendant Fritz Fischer had for one reason or another not been prepared or able to cooperate, the research program once ordered would nevertheless have been carried out just the same. Karl Gebhardt would not have had any difficulty in choosing another assistant out of the number of his assistant-physicians in the clinic Hohenlychen. On account of the great respect in which Karl Gebhardt was held at this clinic, probably everyone of his assistants would have been willing to do it, especially as these experiments were carried out by orders of the State.

Therefore, the action of the Defendant Fritz Fischer did not constitute a condition, the absence of which would have prevented the acts contained in the Indictment, from being committed. Fischer's refusal to cooperate would not have saved the persons to be used in the experiments from such. Fritz Fischer was actually only a tool in the execution of the orders, a tool which could have been replaced any time; and in view of the existing strict order to carry out the experiments, it would definitely have been replaced.

There is no need to state in greater detail that the conduct of the Defendant Fritz Fischer remained in any case confined to the individual orders which were given to him. It can be easily concluded that the Defendant was not responsible personally for his cooperation, as his chief, Karl Gebhardt, gave him only very limited part orders as his clinical assistant, and this shows clearly again the purely military condition of subordination. As Fritz Fischer also strictly adhered to the part-orders given to him and did not show any initiative of his own, it excludes him moreover from any responsibility concerning questions which were outside his sphere of action. It is impossible to make Fritz Fischer responsible for questions connected with the legal and medical preparation of the directives for the experiments and the cosmetic after-treatment.

Apart from this view-point, the special conditions of Public Law, which existed in Germany at the time of the action, ought to be mentioned. They were explained by Professor Jahrreiss in his opening speech before the International Military Tribunal in the proceedings against Hermann Goering and others. Professor Jahrreiss thereby represented the following point of view:

State orders, whether they lay down rules or decide individual cases, can always be measured against the existing written and unwritten law, but also against the rules of international law, morals and religion. Someone, even if only the conscience of the person giving the orders ordered something which he had no right to order? Or has he formed and published his order by an inadmissible procedure? But an unavoidable problem for all domination lies in this: Should or can it grant the members of its hierarchy, its officials and officers, the right — or even impose on them the duty — to examine at any time any order which demands obedience from them, to determine whether it is lawful, and to decide accordingly whether to obey or refuse? No domination which has appeared in history to date has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right; and they were not granted it without limits. This was also the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic and is so today under the occupation rule of the four great powers over Germany.

In as far as such a right of examination is not granted to members of the hierarchy, the order has legal force for them.

All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective. Certain acts of laying down rules, certain decisions on individual cases which have received legal force, are valid even when the person giving the order has exceeded his competence or has made a mistake in form.

If only because the process of going back to a still higher order must finally come to an end, orders must exist under every government that are binding on the members of the hierarchy under all circumstances and are therefore law where the officials are concerned, even if outsiders may see that they are defective as regards content or form. The result of the development in the Reich of Hitler was at any rate that Hitler became the supreme legislator as well as the supreme author of individual orders. It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, above all during the course of this war, that he became this. Perhaps the German people are — even though with great differences between North and South, West and East — particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier.

Finally the only thing that was not quite clear was Hitler's relationship to the judiciary. For, even in Hitler-Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of party officials — this has been shown by some of the speeches by the then Reich justice Leader. The defendant, Dr. Frank, presented here — there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the "sic jubeo" of the one man. But: apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag [Parliament]'s pompous declaration about Hitler's legal position, dated the 26 April 1942 was actually only the statement of what had become practice long before.

The Fuehrer's orders were law already a considerable time before this second World War.

In this state order of his, the German Reich was treated as a partner by the other states, and this in the whole field of politics. In this connection, I do not wish to stress the way (so impressive to the German people and so fatal to all opposition) in which this took place in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuernberg party rally in the case of his own state shows. I should like rather only to point out that the governments of the greatest nations in the world considered the word of this "almighty" man the final decision, incontestably valid for every German and based their decisions on major questions on the fact that Hitler's order was incontestably valid. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Neville Chamberlain, after the Munich conference, displayed the famous peace paper, when he handed at Croydon. This fact was adhered to when people went to war against the Reich as the barbarous despotism this one man.

No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever increasing number of people at home and abroad.

But that does not in any way alter the fact that it existed, not lastly because of the recognition from abroad and because of its effectiveness, which caused a British Prime Minister to make the now world famous statement at a critical period, that democracies need two years longer than the totalitarian governments to attain a certain goal. Only one who has lived as if expelled from amongst his own people, amidst blindly believing masses who idolized this man as infallible, knows how firmly Hitler's power was anchored in the anonymous and innumerable following who believed him capable only of doing what was good and right.

They did not know him personally, he was from them what propaganda made of him, but this he was so uncompromisingly that everybody who saw him from close to and saw otherwise, knew clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom.

Would it therefore not be a self-contradictory proceeding if both the following assertions were to be realized at the same time in the rules of this trial? —

— The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception of these cases in which the monocrat placed himself — according to the indisputable values of our times — outside every human order, and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.

Hitler's will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer's order cut off every discussion. Therefore: A person who, as a functionary of the hierarchy refers to an order of the Fuehrer's, is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.

Only a person, who has understood this, can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler's. For them such cases were not a question of a conflict between right and wrong:

Disputes about legality sank into insignificance. For them the problem was one of legitimacy: as time went on, human and divine law opposed each other ever more strongly and more frequently.

Therefore: Whatever the Charter understands by the orders which it sets aside as a ground for exemption from punishment, can the Fuehrer's order be meant by this?

Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the community of states? — The one supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer's to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene: for what would happen when this connecting link disappeared? It was a vicious circle.

I repeat: An order of the Fuehrer's was binding — and indeed legally binding — on the person to whom it was given, even if the directive was contrary to international law or to other traditional values.

So far the statements of Prof. Jahreiss before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer's command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.

It is true that in the face of all this reference will be made to Article 8 of the Charter for the International Military Tribunal which reads:

The fact that a Defendant acted pursuant to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads:

b) The fact that a person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime but may be considered in mitigation.

In the face of this objection the following is to be pointed out:

At the time of their actions the defendants were subject to German law according to which the degree of their responsibility was determined and, even to day, must justly be referred back to that moment. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.

Even from the above named provision of the Law of the Control Council the principle cannot be derived that every command of a superior should under the aspect of Penal Law, be irrelevant under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command in itself does not exempt one from the responsibility for a crime; it does not however preclude by any means that in connection with other facts it may be relevant for this problem as well.

The guiding legal aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect doss not coincide eo ipso with the "objective" principle of balancing interests, as discussed in examining the case of the Defendant Karl Gebhardt. In addition one must insist on consideration of the "subjective" position of the person committing the act.

In other words, in order to arrive at a just appreciation of the case, the personal situation of the person committing the act at the moment of it being committed will have to be weighed as well. This applies particularly to the personal situation into which the person committing the act has been put by reasons of a higher command which is binding for him and influences him. Besides the general "objective" principles of balancing interests, such as special "subjective" state of coercion can and must therefore be considered in his favor also. A "command" can, therefore, according to the concrete situation shift the boundaries of culpability further in his favor.

Reinhardt Frank, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim:

Insofar as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law.

With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an ethical nature. That is why, in such a situation, a certain leeway must be left to the personal conscience: it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely "personal" character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicolai Hartmann, Ethic (2nd edition, 1935, pages 421-22) says for instance, with regard to genuine conflicts of values:

It is a fateful error to believe that such problems can be solved on principle in theory. There are borderline cases in which the conflict in conscience is grave enough to require a different solution according to the particular ethos of the person. For it lies in the very nature of such conflicts that values are balanced, and that it is not possible to emerge from them without becoming guilty. Accordingly, a man in this situation cannot help making a decision* A person faced with this serious conflict, incurring such a measure of responsibility, ought to decide this: To follow the dictates of his conscience to the best of his ability, i.e. according to his own live sense of the level of values and accept the consequences.

No further argument should be needed for demonstrating that just from an ethical point of view measuring of such personal decisions by standards of Penal Law is out of the question.

I would like to ask the Tribunal to read points 6 and 7 and I would like to come to the next point of my final plea which deals with the membership of the defendant Fritz Fischer in the SS. The Tribunal will find that on page 31 of the original, which is page 33 of the English text.

In Count IV of the Indictment Defendant Fritz Fischer is charged with the membership in an organization declared to be criminal by the International Military Tribunal, i.e. the membership of the Schutzstaffeln of the NSDAP (commonly known as the "SS").

The evidence has shown that Defendant joined the Reiter-SS (cavalry-SS) in 1934. Defendant has when interrogated as a witness on his own behalf explained in detail the reasons for his joining up. They were the same reasons which, in the years after the seizure of power by the National Socialists, forced and caused many hundreds of thousands of young Germans to join any of the formations or affiliations of the Party. The necessity for such a step was — just in the case of young university students not only derived from the fact that granting of privileges during the course of study and the admission to examinations was rendered dependent upon it, but over and beyond this, it was, of their duty to join any of the formations of the Party and to do service there, owing to the decrees of the German Studentship as the legal representation of the German Universities.

It is true, though, that membership of the SS was not precisely prescribed. Membership of the SA, the National Socialist Motor Corps, or, the National Socialist Aviator Corps would have been sufficient. Defendant would have made his choice much more carefully, could he have had the faintest idea that 12 years afterwards this organization would be declared criminal. That the Defendant Fritz Fischer joined the SS was rather more in the nature of an accident, and was, last not least, occasioned by the fact that among the Party formations only the SS gave him the opportunity at that time to indulge in horseback-riding.

The Defendant joined a Reitersturm (Cavalry unit) of the SS in 1934. This fact is relevant in so far, as in the Judgment of the International Military Tribunal of 30 September 1946, declaring the SS a criminal organization, the so-called Reiter-SS was expressly excepted.

Apart from this fact, there seems to be good cause to consider, from a general point of view, the question of condemning a Defendant for his membership in an Organization declared criminal.

The International Military Tribunal has, in spite of all its restrictions and exceptions, in spite of time limits in its Judgment of 30 September 1946, violated a principle which forms an integral part of modern Criminal Law and present-day conception of law in general. It is the fundamental axiom that there can be no punishment when there is no guilt.

In this connection, the reasons should be briefly examined which, after the seizure of power by the National Socialists, in 1933, caused many hundreds of thousands of young Germans to join the Party formations — apart from the pressure brought to bear upon them.

Defendant Fritz Fischer has explained these reasons in detail in the witness box, and I may be allowed to refer to this for the details. It is a fact that many young Germans, and last not least many members of the young student-group, silenced the misgivings they had for the very reason ultimately that they had to witness the former enemies of Germany after the First World War again and again denying political equality to democratically and parliamentary governed Germany, and doing nothing, in realization of a truly constructive idea, to take into account the just interests of the German people. The misgivings about much abuse of National Socialism were bound to lose a good deal of their strength, when it was shown, in the years after the seizure of power, that also the other nations of Europe and the rest of the world did not hesitate to recognize the National-Socialist State, and, far from drawing the political or economical conclusions of their allegedly ideological antipathy — even went as far as to send their diplomatic representatives to the great demonstrations of the Party and to be officially represented at the Reich Party Congresses.

This state of affairs is relevant from the point of view of the evidence, insofar as it is proven in any case that with regard to the bad faith and the criminal intent of the individual members of the Organizations declared criminal, proof must be required in every individual case. A general assumption cannot be considered to be sufficient to justify condemnation on this Count.

In the case of the Defendant Fritz Fischer it may be said in addition that after the outbreak of war he did not volunteer for the Waffen-SS, but was, on account of his membership of the General-SS, like every German liable for military service, called up for the Army.

With the exception of his work in the military hospital of Hohenlychen, Defendant served with the Waffen-SS always at the battle front. During the whole of the course of his service at the battle front he was medical officer with the Divisions of the Waffen-SS which suffered the greatest losses, which were always dispatched to those sectors of the front where danger was imminent, and where units had to be used which would not only fight with admirable valor, but could not be deterred either by any losses or personal sacrifices. During the whole of the time of his membership of the SS, Defendant Fischer did front line service which differed in nothing from the service of a soldier as experienced in the units of the Army. He has offered his sound limbs for his country and has given proof of the honesty of his ideas and his views. Such conduct of a young man of 26 years at the outbreak of war cannot now be declared criminal. The evidence has not furnished any clue as to Defendant Fritz Fischer having had any knowledge of acts which caused the International Military Tribunal to declare the SS a criminal organization. In view of the fact that he did not join the Waffen-SS voluntarily, but was called up for it, that he himself neither committed a war crime, nor a crime against humanity in connection with the war, nor had any knowledge of it, conditions for condemnation according to Count IV of the Indictment do not appear to be fulfilled.

In view of the fact that the Prosecution in no case of my clients has made any specific application for sentence I shall refrain from any formal application as to the sentence.

THE PRESIDENT: The Tribunal will be in recess.

(A short recess was taken )