1947-07-16, #4: Doctors' Trial (early afternoon)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Counsel for the defendant Genzken may proceed with his arguments.
BY DR. MERKEL (Counsel for the defendant Genzken):
Mr. President, Your Honors:
The defendant Dr. Genzken — the first and only director of the Medical Corps of the Waffen-SS — is the fifth man in the dock. If the order in which the defendants sit in the dock is supposed to express, purely superficially, their importance and the degree of their responsibility, this, in any case, is not justified as far as the defendant Dr. Genzken is concerned. This is not to say that the extent of his work, his missions, and his responsibility as medical director of the Waffen SS is in any way being minimized. But the field in which he worked and his responsibility lay in a completely different sphere and was entirely separated from the experiments which are under discussion and judgment in this trial.
As in the case of the first four and most of the other defendants, Dr. Genzken is not charged with the actual, active conduct of the experiments on concentration camp inmates; he is under indictment merely because among those who conducted the experiments there were persons who were allegedly under his command or because he is said to have had knowledge of the experiments at the time they were carried out and thus tolerated and aided them, if only tacitly, or at least not to have prevented them.
In this connection it must definitely be stated right away that the purely formal subordinate relationship never constitutes a punishable fact as such. In addition there must be either exact knowledge of the punishable acts of the subordinate in question, or the superior must have ordered the subordinate to take these actions. Only then and only in this single concrete case can there be any question of a punishable act, and then it is not the subordinate relationship which is the essential and decisive factor — it is the giving of the order to take the action or knowing of it and not preventing it.
It is not necessary to explain that any one who in any way induces another person to commit a punishable act is liable to punishment as an instigator. It is also a generally recognized legal principle that participation in a crime can also consist of omission when action is not taken despite existing legal obligations to do so. But also it obviously assumes that the accomplice has exact knowledge of the criminal act of the actual perpetrator and that he wants to bring this act about if it were his own.
Whether these assumptions are present in the case of the defendant Dr. Genzken, who did not personally conduct the two experiments (sulfonamide and spotted fever) with which the Prosecution charges him, will be determined when the evidence is considered.
As far as the person of the defendant, his position, and his activity as director of the Medical Corps of the Waffen-SS are concerned, the Tribunal can find these in the appendix to the plea.
The character of the defendant, as it has been described by the witnesses, and as it has emerged from his examination before this Tribunal, is illuminated by an especially note worthy statement of one of these witnesses. He calls Dr. Genzken the "Father of the Waffen-SS physicians". It is just this impression which points to his fatherly concern for his soldiers. The medical care was his most important principle and the guiding star for his every action.
Count I charges all defendants with having participated in a so-called conspiracy to commit war crimes and crimes against humanity.
On the basis of the decision of the High Tribunal, announced on 14 July, count 1 of the Indictment is to be eliminated, therefore I need not dwell on this charge.
Whatever may be said in regard to conspiracy as a form of participation, I may draw the Tribunals attention to the closing brief of the defense.
According to Count 11, No. 6 K and J, the defendant Dr. Genzken is charged with special responsibility for the sulfonamide and spotted fever experiments and with participation in these.
In this matter I would like to begin by stating that during the almost three months in which the Prosecution presented its case the name of Dr. Genzken was mentioned only rarely. Document No. NO-1657, Prosecution Exhibit 484, which was submitted by the Prosecution during the cross-examination of Sievers, was, to be sure, directed to Dr. Genzken to be handed to Professor Mrugowsky in his capacity as consultant in hygiene in the Ministry of the Interior, but it has nothing to do with the experiments on human beings; it concerns itself, as its content proves beyond a doubt, solely with counteracting a typhus, epidemic in the concentration camp Neuengamme, which was located in the territory of the State of Hamburg. Even though the Prosecution submitted more than five hundred documents, the Prosecution was unable to produce a single document, a single letter, a single order or directive, which bears the signature or counter-signature of the defendant, or which was addressed to him in reference to the experiments. This fact proves better than many words the non- participation of the defendant in the experiments with which he is charged, especially when one considers the completeness of the documentary proof submitted by the Prosecution.
Considering the entire case of Dr. Genzken objectively one cannot escape the impression that Dr. Genzken is in the dock only because in addition to the Director of the Medical Corps of the Wehrmacht — Professor Dr. Handloser and the Director of the Medical Corps of the Luftwaffe — Professor Dr. Schroeder — they wanted to produce, for the sake of completeness, the Director of the Medical Corps of the Waffen-SS in the person of the defendant Dr. Genzken.
To be sure, Dr. Genzken held the title of a medical director of a "Medical Corps", like the medical director of the army components. His jurisdiction was, however, considerably more restricted when compared to the so-called medical directors and the medical inspector. According to Himmler's express orders, Dr. Genzken was not allowed to call himself a "medical inspector".
As Director of the Medical Corps of the Waffen-SS he was an army medical officer and he was directed solely to build up the entire medical service for troops of the Waffen-SS and to supervise it responsibly. In contrast to the medical inspectors offices of the three components of the armed forces, the Medical Office of the Waffen-SS was never concerned with scientific research and plans, these were exclusively earned on by the Reichsarzt [Reich Physician] SS, Dr. Grawitz, and his agencies, Grawitz had express written orders from Himmler to that effect.
After the Prosecution has withdrawn the charge against Dr. Genzken arising out of Cont II No. 6 K of the indictment — experiments with poisons — and No. 6 L — experiments with phosphorus incendiary bombs-further explanations concerning these two counts are unnecessary.
Thus, according to the indictment and the oral statement of the Prosecution, the remaining charges against Dr. Genzken contain only the sulfonamide experiments in the concentration camp Ravensbruck — and the typhus experiments in the concentration camp Buchenwald.
In its closing brief the Prosecution has in addition charged Dr. Genzken with Dr. Rascher's altitude and freezing experiments, and the sterilization experiments of Dr. Clauberg. I must protest against the fact that now, after the submission of evidence by the Prosecution and Defense has been concluded, new special charges are brought up against the defendants. According to the indictment only the defendants listed in it specifically are charged with special responsibility for the experiments relating to them. The Defense presented the entire evidence under the assumption that the defendants would have to answer only for those experiments for which they have been charged with responsibility.
Dr. Genzken is not charged with any special responsibility for the high altitude or the freezing or the sterilization experiments. He can therefore not afterwards be charged with these experiments.
It seems as if the Prosecution is not convinced of the fool-proof quality of its evidence against Dr. Genzken and therefore attempts at the last moment to produce further incriminating material against him.
Regarding the sulfonamide experiments, the following:
Although the prosecution's presentation of these sulfonamide experiments took almost three days, Genzken's name was only mentioned twice.
Whether these two references can be construed an incrimination the High Tribunal can gather from my exhaustive exposition in the supplement to my final plea.
I shall here present merely a brief compendium of what is explained there in detail.
It is true that Dr. Genzken found out about the sulfonamide experiments in Ravensbruck shortly after Gebhardt and Fischer read their papers. His participation in them at this time, was no longer possible since the experiments had long previously been concluded. Culpable participation, however, either as instigator or as accessory in the way obviously intended by the indictment, is only conceptually possible if the participant is active at a time when the culpable act is not yet completed. Participation after the act is, at least for these experiments, out of the question.
Dr. Genzken was not present when Professor Gebhardt and Dr. Fischer read their papers in May 1943 in the Military Medical Academy in Berlin; nor did he know anything of the delivery of cultures, etc. He did not himself order the experiments to be undertaken, nor was he over present at the discussions between Gebhardt and Himmler. He never visited the concentration camp Ravensbruck or the clinical station there.
He was never informed by Professor Gebhardt and only long after he experiments were over did he find, out about them, but here also only as a third person, and no more than the public at larger The prosecution could produce no letter or other document bearing on the Ravensbruck sulfonamide experiments which was signed or counter-signed by Dr. Genzken, or addressed to him, or in which he was even mentioned.
Since any criminal responsibility of Dr. Genzken for these experiments must therefore be denied, I ask that the defendant Dr. Karl Genzken be acquitted on Count II, No. 6E.
What the indictment calls the "murderous" typhus experiments in Buchenwald have been portrayed by the prosecution as one of the most serious charges in the whole trial. In order to avoid unnecessary and tiresome repetition, I as counsel for the defendant Genzken, shall refrain from entering into the question of the necessity, admissibility, or inadmissibility of these typhus experiments. Counsel for the co-defendant Professor Mrugowsky will dilate on this matter.
Under this count also Dr. Genzken is not charged with actively carrying out any typhus experiments, but is charged only because Ding was his subordinate and because he is alleged to be incriminated by an entry in the so-called Ding Diary. For me, as Genzken's counsel, therefore, the only important questions are: Did Dr. Genzken participate in any way in the typhus experiments, and did he have any supervisory duties in these experiments; or, at the time when the experiments were still being conducted and it might have been possible to interrupt them, did he have full knowledge of them, and, if so, was he in a position to have them stopped?
As the extensive evidence assembled in the closing brief shows experiments were decided on and ordered by Himmler or Grawitz without Grawitz's in any way participating. Then Himmler, on Grawitz's suggestion, commissioned Dr. Ding in Buchenwald to carry them out; this commission was not communicated to the defendants Genzken or Professor Mrugowsky.
Mrugowsky, who had repudiated the typhus experiments, was merely the Hygienic Consultant for the Reich physicians. This activity of his had, from the point of view of his duties as supervisor, nothing to do with his official position as Chief of the Hygiene Institute of the Waffen-SS or as Hygienic Office Chief in the Medical Service of the Waffen-SS. Dr. Genzken himself issued no orders or directives that typhus research experiments were to be undertaken in Buchenwald or elsewhere. Since Genzken issued no such orders to the Director of the Research Department, and since this order went directly from Himmler or Grawitz to this Director, namely Dr. Ding, Ding could to this extent never be Genzken's subordinate, but was the immediate subordinate of the person from whom he had received his research assignment, that is to this extent he was immediately subordinate to Grawitz.
Dr. Ding had a written order to carry out typhus experiments from Grawitz. The stamp of the experimental station in Block 46 read, "Reichsfuehrer SS, Typhus Experimental Station Buchenwald." Thus Ding was subject to supervision by the Reich Physician and not by the Chief of the Medical Service of the Waffen SS. The evidence presented, particularly the prosecution witnesses themselves, proved that the experiment station in Block 46 on the one hand, in which the typhus experiments were carried out, and the vaccine production station in Block 50 on the other hand, were completely separate entities in the concentration camp Buchenwald as regards location, personnel, organization and consequently also supervision, of both of which, however, Dr. Ding was in charge. Scientific research, pl planning and therefore also the institution and maintenance of research institutes belonged to the duties of the Reich physician. Consequently Ding as chief of the research institute, in other words of the experimental station, was his immediate subordinate. Only with regard to the vaccine production Ding was subordinate to the Chief of the Hygiene Institute of the Waffen SS and therefore would have been subordinate of Genzken, if this production had started before September 1943. That was not the case, however, since the institute moved to Block 50 only as late as August 1943 and the production there only began towards the end of 1943.
A supervision of the research institute in Block 46 or any other jurisdiction over the experiments therefore never existed for Dr. Genzken.
As Dr. Genzken never was in charge of supervision he never received any reports from Dr. Ding on his typhus experiments. All the reports by reason of competency went to Ding's superior, the Reich physician Grawitz.
The reason why Genzken was not informed by Grawitz about the experiments was thoroughly explained by me in the plea, where I described the position of the Reich physician vis a vis Dr. Genzken.
Dr. Genzken therefore could not know anything about the typhus experiments, or the sulfonamide experiments or about any other experiments, when planned, prepared or carried out, because he was never initiated by Himmler and even less by Grawitz in these secret research assignments. The Reichsfuehrer and the Reich physician considered him as a persona ingrata et incerta, that is as an unreliable person, and he had neither the confidence of one nor the other. Grawitz with exaggerated jealousy defended his duties and competencies and carefully protected his secret always fearing for his position. He prevented any interference of Genzken by repeatedly telling Mrugowsky that Dr. Genzken had nothing to do with the scientific experiments.
He furthermore could not even have given any orders for the execution of such scientific research work in a concentration camp. The research institute was located in the Buchenwald concentration camp and was administratively and economically under the administration of this concentration camp. Dr. Genzken had no medical authority to give orders within a concentration camp. The medical supervision within the concentration camp was Grawitz's duty.
Even if Ding during his activity in Buchenwald was several times in Berlin, it has to be taken into consideration that Genzken was not informed by him about these experiments and their details, and that therefore Dr. Genzken did not get any knowledge about the kind, the extension and the length of the experiments. The experiments began in January 1942. Dr. Mrugowsky once informed Genzken officially about these experiments in April 1943, at a time when they were concluded to such an extent that a result on the vaccine production had been ascertained and Ding intended to make a public report on the experiments. This report was very brief. Standing up, Mrugowsky reported about the amount of vaccine which was intended to be produced for the troops Details about the experiments, such as artificial infections, the number of experimental subjects, and the number of deaths were not mentioned, and the defendant only got the knowledge of these details during these proceedings.
The impression of Mrugowsky's information on Genzken who had no bacteriological or serological training, was that of a regular scientific series of experiments. But he did not suspect that they were any criminal experiments on human beings. A reason and the possibility for interference therefore did not exist for Genzken besides the fact that he was not in charge of the supervision.
The entry of 9 January 1943 in the so-called Ding Diary may, at first glance, seem to incriminate Dr. Genzken. The Prosecution thought they could infer from this entry that the research station in Block 46 belonged to the Hygiene Institute of the Waffen SS and thus, through Mrugowsky, came under the Chief of the Medical Service of the Waffen SS, Dr. Genzken. What is to be said in general concerning the probative value of the Ding diary, the High Tribunal can see from the supplement to the final plea. There I have explained in detail that the so-called Ding diary can by no means be considered a regularly kept diary and therefore can have no full probative value. Nor does the entry of 9 January 1943 contain anything which particularly incriminates Genzken.
For, as is also explained in detail in my closing brief we are here concerned solely with the issuance of approval for a change of name for the vaccine production site, the suggestion having originated with Ding and not Dr. Genzken. This took place as late as fall of 1943.
Consequently the diary entry does not form a firm basis for the conception of the Prosecution, which is not supported by any other reason for suspicion. The foundation is removed from it completely by the extensive evidence which clearly shows that Genzken as Chief of the Medical Service of the Waffen SS was eliminated in every respect from questions of research work in Block 46. In this connection I refer to the sworn testimony of the witness Kogon and the before-mentioned affidavit of Joachim Ruff (Doc. Mrugowsky No. 109, Exhibit 103.)
If I can, in conclusion, state that during the war Dr. Genzken never entered either the concentration camp Buchenwald or the typhus research station or the production site, then I believe that I have every right to assert that Dr. Genzken did not participate in the planning and execution of the typhus experiments in Buchenwald or Natzweiler as leader, instigator, accomplice, or in any other capacity, and I therefore ask that he be found not guilty under Count II No. 6 J of the Indictment.
Under Count III all the Defendants are accused of a crime against humanity since the medical experiments listed in Count II No. 6 are also represented as crimes against humanity.
The defendant Dr. Genzken can only be sentenced according to Count III, figure 11, if the prerequisites for such a sentence are given according to any of the counts under II, figures 6 — 9. Count III, figure 11 contains no independent criminal act, but only the statement that the experiments on human beings listed under Count II figures 6 — 9 are considered as crimes against humanity by the prosecution. Therefore punishment according to Count III, figure 11 is possible only in connection with punishment according to Count II, figures 6 — 9.
Since Dr. Genzken did not participate in the sulfonamide experiments nor in the typhus experiments as principal, accomplice or instigator within the meaning of the indictment therefore the possibility of sentencing him according to Count III, figure 11 is excluded, since independent punishment is not possible on this count.
In Count IV Dr. Genzken finally is charged with having been a member of the SS, and thus a member of a criminal organization.
According to the text of the IMT Judgment (page 16503 of the German record of the IMT) the mere membership does not suffice for a person to be included in the declaration of criminality.
Rather, the SS member can only then be punished if he is connected with war crimes or crimes against humanity through his direct participation or knowledge. Dr. Genzken by no means denies having been a higher SS leader and having joined the SS Verfuegungstruppe voluntarily. Moreover, he was never a member of a resistance movement and does not want to produce material in his defense in this or similar directions. Only where it was necessary did he, in complete frankness and honesty and with that energy and toughness peculiar to himself, fight for his points of view. When he was called by Himmler to become the successor of Grawitz as Reich Physician SS and of the police he rejected the appointment absolutely. Therefore, he was never appointed deputy of the Reich Physician Grawitz. Nor did he hesitate to put himself against the Reichsfuehrer SS whenever his (Dr. Genzken's) honor was involved. And it certainly took courage, resoluteness and mature conduct to state in front of the large number of SS leaders:
Not even Heinrich Himmler can limit my sense of honor.
The High Tribunal will not have to consider in detail the question of SS membership since his membership could only then have an aggravating effect on his sentence if the defendant were to be convicted for the experiments with which he is charged. However, the evidence submitted by the prosecution does not suffice for such a conviction. Dr. Genzken cannot be sentenced by this Tribunal for his SS membership alone.
Mr. President, Your Honors:
I am approaching the end of my speech. I must emphasize again that Dr. Genzken was a physician and a soldier, that he had already served his Fatherland as a physician and a soldier during the first World War 1914-1918, and that, in that same manner he saw his life's work in medical service for the Waffen-SS. He has accomplished his duty and mastered the many difficulties which appeared during the war. He was not supposed to exceed this task, nor did he want to do more, and actually he did no more than that.
His high rank and his position as medical chief of the Waffen-SS may not make it appear improbable, perhaps, that he was involved in the experiments in some form or other. If the High Tribunal will carefully examine and weigh the incriminating evidence of the prosecution and the material submitted in his defense, and I am firmly convinced that the High Tribunal will undertake this difficult task with its peculiar sense of responsibility and painstaking conscientiousness — then it will have to conclude, just as I must do, that the defendant Dr. Genzken cannot possibly have incriminated himself in the experiments as charged and that, therefore, he is not guilty in the sense of the other counts of the indictment.
Thus, Your Honors, I place the future fate of the defendant Dr. Genzken confidently into your hands and I am firmly convinced that you will pronounce a just sentence.