1947-07-16, #6: Doctors' Trial (late afternoon)
Dr. Weisgerber, counsel for defendant Wolfram Sievers, presents his closing argument
THE PRESIDENT: The Tribunal is again in session.
The Tribunal is informed that the translators have the transcript of the arguments on behalf of the defendant Sievers. The counsel for the defendant Sievers may now proceed with his arguments.
DR. WEISGERBER (Counsel for the defendant Sievers): Mr. President, I do not know whether the Tribunal has a written translation of my plea.
THE PRESIDENT: The translation is not available to the Tribunal, but the interpreters have the translation and the Tribunal will listen to the interpreters. Counsel may proceed.
DR. WEISGERBER: Mr. President, I have received the requisite number of translations and will be glad to give them to the Tribunal.
Mr. President, Your Honors —
THE PRESIDENT: Counsel, if you will speak in a little lower tone of voice, it will be easier for the Tribunal to hear the interpreters.
DR. WEISGERBER: Mr. President, Your Honors, "Sievers — a key figure," a special case, "Sievers and his collaborators in the Ahnenerbe [Ancestral Heritage] Society were completely possessed of the vicious and horrible doctrines of Nazism." — These are some of the slogan-like epithets that the prosecution used when presenting the case Sievers. It is my duty to discuss the case of Sievers with dispassionate objectivity in order to offer you, Your Honor, the basis for a judgment doing justice to all the details of this case.
Sievers' life history and his professional career are being described in my closing brief, in which I quoted a number of affidavits testifying to his good character and his high ethical attitude. Sievers met Dr. Hielscher for the first time in 1929 who with extraordinary insight recognized at a very early stage the dangers of National Socialism made Sievers an entirely reliable, decided and faithful follower of Dr. Hielscher. On his instigation Sievers became a member of the NSDAP. On his instigation Sievers in 1935 resigned from his professional career in order to fill the position of a secretary general in the Ahnenerbe society.
He did this in order to make possible the execution of the tasks against National Socialism that Dr. Hielscher had assigned him. Alone the fact that Sievers renounced a safe position and took over a duty that since the beginning was connected with the greatest danger for his personal safety must be appreciated as an act of greatest self-denial.
I only want to deal very briefly with Sievers' position in the Ahnenerbe Society that I have described in detail in my Closing Brief. I consider this necessary because the Prosecution has described Sievers as the authority in the Ahnenerbe and the "director" of the Institute for Military Scientific Research. The erroneousness of this concept is of decisive importance. The President and therefore the highest authority for both institutes was Himmler. Under him was the curator and later Amtschef [Head of Office], Prof. Dr. Wuest, Rector of the Munich university, who was in charge of the scientific direction. If there was such a thing as a supervisory right and a supervisory responsibility for the scientific departments, it was exclusively Dr. Wuest's duty and not Sievers'. Sievers was the "Reich business manager" who was exclusively in charge of administrative duties, which, however, were limited to special fields. When in 1942 on Himmler's order Rascher's and Hirth's institutes were unfortunately annexed.
When in 1942, on Himmler's order, the "Ahnenerbe" — until then exclusively culturally and humanistically oriented — was unfortunately joined to the institutes of Dr. Rascher and Dr. Hirt and later coordinated with them in the Institute for military scientific research, Sievers tasks remained exactly the same as before. They are designated exactly in Himmler's written order of 7 July 1942, and of 13 December 1942. Ordering research projects, giving orders, supervision and execution of research work, allocation of prisoners for experiments on human beings, all these did not belong to Sievers work. If yet there are papers in the documentary material of the Prosecution that deal with the allocation of prisoners, then these papers — if at all — were only forwarded to the competent authority by Sievers.
On all activities of an administrative nature, reports were made to the Curator and Amtschef [office head]. Insofar as Sievers, considering the geographical distance between Berlin and Munich, signed the correspondence, the copy was subsequently countersigned by Dr. Wuest, with those few sentences I hope to have clarified the competencies and responsibilities within the "Ahnenerbe" and the Institute for military scientific research. When Professor Dr. Gebhardt characterized responsibility within the "Ahnenerbe" with the remark that Sievers did not belong there at all, his judgment was absolutely correct.
I shall now turn to comment briefly on the individual counts of the indictment. At first I shall deal with those counts, in which Sievers' participation does not exist, because the characteristics of objective factual evidence are missing.
1. Sievers is being connected with the malaria experiments of Dr. Schilling. No witness of the Prosecution could certify this. The documents submitted do not show anything except that Sievers wanted to release Dr. Ploetner from his activities with Dr. Schilling, which was expressly requested by the former. The entomological station in Dachau, which belonged to the Institute for military scientific research had not the least thing to do with either Dr. Schilling's malaria research or with experiments on human beings, as witness Dr. May testified. For the rest, I refer to the state in my Closing Brief, pages 49-51.
2. With the seawater experiments that were carried out in the Concentration Camp Dachau by order of the Luftwaffe, Sievers had also nothing at all to do. On the basis of an agreement between the Luftwaffe and the Reichsfuehrung-SS [Reich Leadership], Sievers, in the course of a coincidental meeting on 20 July 1944, in a conference of at most 20 minutes' duration discussed with Professor Dr. Beiglboeck, who had been completely unknown to him until then, the cession of rooms in the entomological institute, which, moreover, was located outside the camp.
Sievers had no knowledge of either the subject of the scheduled experiments, or of their further course. After 20 August 1944, Sievers was not in Dachau any more. (See Closing Brief, pages 63-66).
3. As proof of Sievers' participations in the experiments with epidemic jaundice, the Prosecution refers to an entry in the journal of the "Ahnenerbe" dated 3 March 1944. Generalarzt [General Physician] Dr. Schreiber is requesting Sievers to arrange a conference with Himmler about hepatitis. Until that day, Sievers did not know what hepatitis was, neither did he know later where hepatitis experiments were carried on, and what sort of experiments they were. (See Closing Brief, pages 67-69).
4. The typhus experiments carried on in the Concentration Camp Natzweiler were ordered via Goering as president of the Reich Research Council and via the Inspector of Sanitation of the Luftwaffe. Sievers did not come into contact at all with the experiments or the director of the experiments, Professor Dr. Haagen. Until 1946 he did not even know Dr. Haagen. Also, at the time the experiments were conducted, Sievers was never at the Concentration Camp Natzweiler. Twice there were written requests for a certain number of persons for typhus immunizations forwarded to Sievers who was definitely not the competent authority for this. The express assurance was given that these immunizations were not dangerous. How should Sievers have obtained the knowledge that this was possibly a question of illegal experiments, which was emphatically denied by Dr. Haagen, the director of the experiments? That the immunized persons were quartered the the so-called "Ahnenerbe" — barracks in the Concentration Camp Natzweiler is no proof of the fact that the "Ahnenerbe" had anything at all to do with the happenings there. The building block opposite this barracks was still called "Chevauzleger" barracks by the natives when in Germany for a long time already the "Chevauzleger" — as the light cavallery of the old Bavarian army was called — were non-existent.
Therefore, here too there was no connection of Sievers with the typhus experiments (See Closing Brief, pages 69-75).
5. If the Prosecution maintained that Sievers was connected with Biological Warfare, the so-called "N-Stoff" (N-Material"), and with certain gas experiments, it still remains for the Prosecution to present proof of the fact that it was here a question of any sort of crime.
The assertions of the Prosecution have been completely refuted. (See Closing Brief, pages 94-96).
6. Also, the indictment Sievers' for participation in experiments are the coagulation of blood has no foundation whatsoever I Sievers was merely to initiate the manufacture of "Polygal" which was developed by Dr. Rascher together with the Dachau-prisoner Feix. Sievers did not participate in any form and at any time in the previous development of this preparation. If Mr. Rascher is supposed to have committed criminal offenses in connection with the development of Polygal, this fact was completely unknown to Sievers. (Closing Brief, pages 85-94).
7. Sievers did not personally participate in the Lost (gas) — experiments carried out by Professor Dr. Hirt, in Natzweiler. When the experiments were already concluded, and the persons experimented on were still lying in the experimental station for observation. He was in Natzweiler once for a short stay. There he talked to the persons on whom the experiments were conducted who, upon his questioning, answered that they had volunteered. This fact was verified by witness Nales. Regarding the question of volunteering of the persons experimented on, I refer to the statement of facts in my Closing Brief (pages 23-26a). The outward picture that Sievers obtained from the people experimented on, and the declaration that they had volunteered, could not possibly create in Sievers the conviction that medical men, whose supervision was not in the least in Sievers' resort, would conduct illegal experiments. (Closing Brief, pages 52-62).
8. Sievers had knowledge of the low-pressure and low-temperature experiments that were carried out in the concentration Camp Dachau by Rascher together with Dr. Romberg or Professors Holzloebner and Dr. Tinks. That these were criminal experiments cannot be assumed in view of the evidence. In use case had Sievers positive knowledge of any criminal activities, should they actually have taken place. In the course of the experiments which Sievers observed wholly or in part, all persons on whom these experiments were conducted stated that they had volunteered.
What reason should Sievers have not to believe those assurances? What reason should Sievers have not to believe the frequently repeated declarations given to him by Himmler and other participants, that the people experimented on were volunteers? What reason should Sievers have to assume that the doctors assigned to carry out these experiment would disregard the principles of medical professional ethics?
There is nothing at all which lead one to assume that Sievers know about the experiments carried on by Rascher on his own. On the contrary, from the affidavit of Dr. Fritz Friedrich Rascher we know with how much secrecy Rascher surrounded his non-controlled experiments. We also knew from the testimony of Dr. Panzengruber (See Exh. 45, see Doc. Book II, page 10), how little trust Rascher put in Sievers; to impart to him joint knowledge of a secret was out of the question in view of Rascher's character. I have thoroughly demonstrate in my Closing Brief how to evaluate Siever's activities in connection with Rascher's planned habilitation as a lecturer and his transfer into the Waffen-SS. I come to the conclusion that Sievers cannot be accused of criminal participation in the low-pressure and low-temperature experiments. The prerequisite for that would have to be knowing or being bound to know of criminal experiments connected with the animus auctoris vel adjutoris. None of these characteristic facts are present.
9. If I now touch on the Jewish skeleton collection, it is clear to me that prima vista Sievers' activities can be thought to constitute considerable material for indictment. But is this really so? Did the idea of making a Jewish skeleton collection originate with Sievers? No! The plan was discussed by Himmler and Hirt, and Himmler then ordered it executed. When, at Easter 1942, Sievers tried to influence Himmler to desist from connecting Dr. Hirt's department with the "Ahnenerbe", Himmler pointed out the commissar order ("Kommiss arbefehl") which had been unknown to Sievers until then. To this commissar order Himmler added the explanation that Soviet commissars had committed inhuman cruelties on German soldiers and civilians innumerable cases.
Sievers had never been personally acquainted with war conditions in the East; can he be expected to know that an order given by the Chief of State and Commander-in-Chief of the Wehrmacht was illegal? To answer this question in the affirmative would mean to charge everyone who held a subordinate position with a responsibility which he simply cannot be expected carry, were it only for his lack of knowledge in the fields of international and national law.
The persons designated for the skeleton collections were selected in the Concentration Camp Auschwitz by Dr. Beyer on orders from Dr. Hirt. To interfere with this part of the execution of Himmler's order was neither in the power of defendant Sievers, nor did he have on opportunity to do so. Nor was he ever in Auschwitz, and did not exercise influence of any sort on the operation Dr. Hirt or Dr. Beyer. Now, Sievers signed the letter drafted by Dr. Beyer, dated 21 June 1943 and addressed to the Main Reich Security Office (Reichssicherheitshauptamt) which contained material on the transfer from Auschwitz to Natzweiler of persons who had been selected for liquidation. (Pro. Exh. 181). Is there to be sure in this letter any supporting, furthering or favoring of the skeleton collection planned by Himmler and Dr. Hirt? In my Closing Brief I have thoroughly outlined my opinion on this question. The transfer from Auschwitz to Natzweiler of the people selected by Dr. Beyer had a long time ago been decided upon in the plan Himmler-Dr. Hirt. Gluecks, who was the competent authorities for all matters concerning concentration camp, and the Union Reich Security Office (Reichssicherheitshauptamt) had already received their orders from Himmler a long time ago. Would there have been no skeleton collection if Sievers had not written the letter of 21 June 1943? Only he who is completely ignorants of the order machine of the NS-regime will first it difficult to give reasons for the decided "NO" that must answer the question posed above.
In September 1944, Dr. Hirt asked the "Ahnenerbe", what should be done with the skeleton collection. Sievers forwards this inquiry to the next authority. The decision is made by SS-Standartenfuehrer [Colonel] Bannert of the personal staff of the Reichsfuehrer-SS. Sievers forwards these directives. Thus, here too there is no independent action on Sievers' part, quite analogous to all other cases. Even already on the basis of their occurrence, which, in itself, is completely negligible, it can be noted how inclusive the prosecution's attitude is that Sievers was a person of authority. Evaluating the evidence and the legal questions arising therefrom purely objectively I come to the conclusion that in the matter of the skeleton collection Sievers cannot be regarded either as principal or as accessory or as abettor.
10. Regarding the question of conspiracy I refer to defense counsel's statements in the plenary session of 9 July 1947. I refer to these statements on this subject in my closing brief.
11. Sievers' membership in the SS, an organization that has been declared criminal, is a fact, objectively speaking. But for subjective reasons, which I shall now discuss, he cannot be condemned for this.
May it please the Tribunal, Let me remind you of the part of my presentation which dealt with Sievers' participation in the resistance movement against the Nazi regime.
When the defendant Sievers claims to have been active in a resistance movement, he is not thus attempting to achieve a mitigation of the sentence that may be passed against him. Rather, I am of the view that this activity must inevitably lead to his acquittal, even if the Tribunal, contrary to all expectations, should be inclined to the opinion that Sievers took part in the incriminating experiments.
I first intend to state my attitude toward a number of legal questions which are recognized in the penal codes of all civilized peoples and at all times.
The Tribunals task here is not simply to apply a specific paragraph, but to extract from general juridical and legal principles the rule which reveals and creates new law for newly arisen cases.
It is a matter of course that in first order I am appearing in behalf of my client, but you, Your Honors, are not passing judgment in your verdict merely on this defendant. Your verdict has a much more inclusive, universal, and I should like to say, world embracing significance, over and beyond this individual case. For this is the first time that a decision has to be passed regarding the actions of a member of a resistance movement in a trial of the significance of this one.
And therefore your verdict is fundamental and establishes a precedent for the present, for many many other defendants who stand and will stand before you and other tribunals. The implications of your decision extends also into the future for thousands and tens of thousands of human beings who sometime or other may find themselves in the position of combatting some criminal governmental system with means similar to those used by Sievers. There are still autocracies and totalitarian dictatorships on this earth, and one needs but little political perspicacity to see that future dictatorships can bring about further international imbroglios and wars of the most terrible sort. And in the future also courageous men will again and again be needed who for the welfare of their people of their nation and of humanity will hurl themselves against this danger. And for these fighters and groups of fighters your verdict will be a guide. You are passing judgment in advance on the future possibilities and radius of action of coming resistance movements against criminal governments. In your judgment you can apply a brake to such movements; but you can also afford them the certainty that is necessary for their hazardous undertaking and for their success. How and where would you in the future again find such helpers, if they had to reckon not only with the immediate danger but with the additional danger of being called to account by the very people for whom they had striven.
And therefore, Your Honors, in your judgment in the case against Sievers you are taking upon yourselves a responsibility before the entire world and for all time, a responsibility with which a tribunal only seldom finds itself confronted. But on the other hand you can also say with pride that in your judgment you have done the world, in its struggle for peace and justice an incalculable service.
And therefore also, the reasons for your judgment against Sievers are so prodigiously important, much more important, in the grand movement of world history through time, than the petty case against Sievers can ever be. And I myself am obliged to deal with these legal problems at somewhat greater length.
Of course the member of a political resistance movement can only then refer to his resistance, if this resistance itself is lawful. This will not always be the case; for political crimes and similar deeds committed for political motives are and remain crimes. Whoever removes his political adversary for the sole reason of taking his position himself or opening the way to his partisans acts unlawfully and is punishable. This changes, however, in the moment when it is not merely a political dispute that is being settled by murder, when it is rather a tyrant, whose reign is entered with bloody letters in the annuals of mankind, who has finally been prostrated. Here, a recognized reason justifying his deed will come to the perpetrator's aid. And this is self-defense.
According to Article 53 of the German Criminal Code an act compelled by self-defense is not punishable. Self-defense is such a defense as is required to repel an imminent unlawful attack on oneself or another.
But those principles are not only German legal regulations. They are common legal heritage of all peoples and all times. They are in line with human sentiment to a large degree and are called "the great law of defense."
They are to be found already in Roman law as: vim vi repellere licet and have been taken over enthusiastically — as stated by Wharton in Par. 613 — by English Common law and by American law. Every individual is authorized toward off injustice from himself or from another person with all means at his disposal. The struggle against a criminal government, menacing world peace, preparing aggressive wars and about to plunge the world into immeasurable misery, useless and needlessly, out of lust of power and arrogance, must be regarded in the same light, the struggle and resistance against such a government and leadership is lawful and permissible, regardless of the means with which it is being conducted. Indeed since the end of the war more and more people have taken the attitude that such a struggle is not only lawful and permissible but the duty of every individual. Is it not a fact that the collective guilt of the whole German nation is that it had viewed the activities of the Nazi regime without doing anything about it, at the most with their secretly clenched in their pockets?
Murder and manslaughter, bodily injury and deprivation of liberty committed against the responsible mainstays of such system are acts of self-defense in the interest of peace and humanity. They are lawful and not punishable, they are duty if there is no other remedy.
This question as to the lawfulness of political murder and the duty to commit political murder has at all times been pondered about not only by lawyers, but also by a wide circle of poets and philosophers. Friedrich von Schiller justifies the murder of Gessler as the last desperate attempt to gain liberty from servitude with no way out. Thus the murder of a criminal tyrant in addition to being justified legally is also valued highly in a moral sense.
It may happen sometimes that of necessity it is not the real attackers who suffer injury. A person warding off an attack may be forced to affect a third innocent party. Provision has been made for this case also in Article 54 of the German criminal Code; it is called necessity. Article 54 reads as follows:
An act does not constitute an offense, if part from instances of self-defense, it was committed in a state of necessity in order the rescue the perpetrator or his relative from imminent danger to life or limb, provided the necessity was caused through no fault of the perpetrator and could not otherwise be averted.
The legal codes of all peoples and all times had to take a stand on this problem of two legally protected interests in conflict with each other, which can only be solved by violating or even destroying one of them. Law cannot insist with extreme consistency that the individual should respect the rights of others under all circumstances and in every situation and sacrifice his own instead. A Frenchman has the following to say with regard to this point:
This theory is admirable for saints and heroes, but it is not designed for vulgar humanity.
Quod non est licitum in lege, necessitas facit licitum is a saying in Roman law and Rossi, a French jurist says:
The act is excusable only when the agent is yielding to the instinct of self preservation, when he is confronted by imminent danger, when his life is a stake.
An old German legal proverb says:
Need knows no law.
Finally American Law also deals with this problem under the name necessity— (Wharton Par. 642) — a literal translation of the German expressions "Not" or "Notstand". Thus under the plea of necessity a shipwrecked person may push his companion in misfortune from a plank which cannot support both. Applied to resistance movements against criminal governments, these principles mean that even third parties may be hurt, if there is no other way out, if the "Not" "Necessitas" necessity it is required imperiously and unavoidably.
Your Honors are called upon to reduce the principles of self-defense necessity to their common denominator, to apply them to Sievers' case and thus to insert them among the unwritten rules governing international relations of public and international law. Anglo-Saxon legal thinking and the principles of natural law are other legal sources that may be of value to you in arriving at a judgment.
And now I should like to turn to Sievers' case particularly. The following points are of decisive importance in judging the acts of this:
Did Hielscher's group belong to it?
Was this group to be taken seriously and what were it aims?
Was Sievers a member of this group and what were his tasks?
How did he conduct himself in carrying out his tasks?
Did other possibilities exist for him?
It has frequently been asserted that there was no German resistance movement. But, resistance in Germany did exist. I must, however, admit that the question: "Where then was this resistance?" suggests itself to a person not knowing conditions within Germany, particularly during the war. I also have to concede the fact that the public as a whole has not heard of much more than Stauffenberg's bomb plot of 20 July 1944, with its tragic results.
But a person asking this question would completely fail to recognize under what conditions the whole resistance movement was forced to work against the Nazi regime he forgets that he too, did not have any idea of the existence of the group around Stauffenberg until this fatal day of 20 July 1944. All the more I am compelled to give a compact presentation of conditions with which everybody was faced who opposed the Nazi regime.
The authoritarian regime aspired from the very start to gain complete control over German man, every German woman, over children and over the aged, so as to instruct them along the lines of the new form of government. The demand for absolute authority did not recognize personal freedom. It did away with professional and industrial organizations, with cultural and social institutions, so as to revive them partly in a different shape, completely subjugated to the control of the Nazi regime.
On the other hand the battle also set in from the beginning. Nothing would be more wrong, of course, that to imagine that this battle could be fought quite openly, with a great deal of publicity, with the use of physical violence, with fire arms, bombs, war and war cries. Not even the trade unions, the most highly organized and determined opponents of the new regime could afford to adopt this type of warfare in 1933. This regime held the entire public machinery in a firm grip and gained an ever increasing control extending to the spheres of private life, by means of the security service of the SS and the Gestapo organizations. The flexible regulations of the Heimtuecksgesetz [insidious law] allowed for sentences of severe terms of imprisonment even in the case of the pettiest derogatory remarks. Many of harmless remark caused political discrimination and the constant danger of being taken to a concentration camp.
No press could have been found to rebel against the tyrants. If leaflets were secretly circulated whose contents defamed the Nazi regime the entire machinery of police, Gestapo, the SD etc. was mobilized.
Possession of arms was certain evidence of acts high treason and resulted in the death penalty for the careless. In addition there was a widespread spy system affecting people's every move. One had to be on one's guard even with one's closest relatives and one's children.
These few words on conditions inside Germany are necessary, however, as a reply to the absurd question the witness Hielscher was asked in Stockholm, namely, "Why do you not speak in public?"
Most striking in their resistance were probably the two great Christian faiths. That was not preached from the pulpits against the Anti-Christ and his false prophets, how many clergy of all denominations went to prison, to penitentiaries, concentration camps, even to death. Of course, the Churches could propagate their views with less restraint than others. After all they did not want to have a part in the over throw of the system by sheer force by the killing of its leaders, and representatives, by armed battle. Those resistance groups outside the Church, however, which had come to realize that without using force the dictator, National Socialism, could never be brought to fall, those who were not held back by the ideological restrictions and inhibitions of the Churches, they must not make themselves known before the day of action dawned. Up to that time they had to keep silent. "Never seek of your aim, but always think of it." If they had forgotten this rule they would have been betrayed by spies and oppressed by the Gestapo. If the Stauffenberg group had not acted in the same way, who knew about it? Who knew of its existence before the bomb burst in Hitler's headquarters on July 20, 1944? The same was the case with all the other resistance groups which unfortunately no longer were in the possibility of acting and part of which had been traced up and secretly killed. The fact that all of them existed is proved, however, by the works of Ford and others.
But downright classical witnesses are the numerous bloody victims sent to concentration camps to death by the Gestapo.
Among these groups was also the group around Hielscher of which the defendant Sievers was a member.
This Hielscher group existed it was a fact, it was an action. Hielscher himself is an unimpeachable witness for that fact. It was the reason for his being under arrest for three months subsequent to the 20th of July 1944, for his being one of those who were to be hanged. But Hielscher's underground activity is beyond that substantiated under oath by many equally reliable witnesses. There is, for one, the political emigrant for Dr. Borknau who at least since 1928 was active in the struggle against National Socialism. He had known Hielscher since 1928. He speaks of Hielscher's hostility against National Socialism, of his "sharp attitude at that time, done a great deal of negotiating and conspiring together with Hielscher. Hielscher expounded to him his methods of action. Later on, during the time of his exile after 1933, Dr. Borkenau still watched Hielscher's activity from abroad and convinced himself again and again; Hielscher is carrying on. Such a testimony coming from an emigrant deserves our credence. Another witness who never lost contact with Hielscher is Dr. Topf who himself was active within the resistance movement. He, too describes Hielscher as a violent opponent of National Socialism, and untiring worker and fighter. In addition there are the many affidavits submitted by me and which belong to this context. The fact that Hielscher did not play a bigger part in public does not disprove his activity in the opposition. Camouflage to the hour of decision was the supreme commandment for him also, and Dr. Borkenau considers it a high achievement that he succeeded in this to such a high degree. Sievers was a member of the Hielscher group.
This, too, cannot be any longer subject to any doubt. Apart from the vast amount of testimony given, the whole personality of my client speaks against any National Socialist inclinations on his part. His whole character and temperament and his career were bound to make him a decided opponent of the Hitler system of oppression, murder and terror. His very origin, the interests of his youth took him into an environment which was as far as possible removed from national-socialistic ideas. He, the son of a director of church music, was engaged in studies of history and history of religion. His character make-up led him to the Wandervogel and to the Boy-Scouts; these were interests, activities, inner attitudes which were ridiculed and slandered and violently fought by National Socialism. Everyone who has testified to Sievers' character either in the course of direct examinations or by affidavits knows him as a sincere man with high ideals of deeply felt humanity and a strong sense of right and justice. If you consider this description of Sievers' character given by well-known anti-fascists along with the frequent support which Sievers, as has been proven, gave to the victims of nazism, only a small step is needed to make us certain of the fact that Sievers took part in a resistance movement.
The prosecutor may say:
I don't believe all that; for Hielscher and Sievers did not do anything.
This would be wrong, Your Honors! Other resistance groups have had the same misfortune of not getting a chance to deal a blow. The witness Hielscher has stated the reasons very clearly why, after the unsuccessful plot of 20 July 1942, nothing could be done for a while. Due to the temporary elimination of the Wehrmacht from the plan of Hielscher and his comrades everything had to be started again from the beginning.
Just what was the position of the defendant Sievers within the Hielscher group and what were his tasks? Hielscher himself gives us the answer:
Sievers had two tasks:
1.) Obtaining information from the immediate entourage of Himmler, as basis for the assignment of all the opposition forces as to place; time and manner;
2.) Sievers was not only a spy and a scout; he was appointed, and was ready, to liquidate Himmler at the moment of action;
These tasks demand a double legal clarification:
a) Were they themselves permissible, legal or even in keeping with duty?
The principles which I have developed concerning the concepts of self-defense in the field of political warfare present the answer to this.
b) What measures was he permitted to use? How far was he permitted to venture into this field which was punishable in itself? To what extent could he implicate third parties who were not involved, but even victims of National Socialism?
The rules of necessity point out the way to a decision and solution of this problem.
If I now turn to the first problem, I can deal with it relatively briefly.
According to everything that we know today, it is an incontrovertible fact that Hitler and his accomplices terrorized the German people and the entire world in a criminal manner and with criminal means, that from the very beginning they constituted a direct danger to peace and to all civilization, and that finally the worst fears on this score became a horrible reality. The primary condition for defense, self-defense, is beyond all doubt, the following: an imminent illegal attack upon the highest possessions of mankind. This was, to use the language of the German Reich Penal Code, the "danger" which was to be "guarded against".
We know, however, that this defense could not be carried out by the normal means of a democratic parliamentary system. I have described the truly devilish organization by which the application of these means had been made impossible.
From this, it becomes apparent that only the elimination of Hitler and his confederates was the one way by which this system could be broken and smashed. Less stern and violent means were not available.
With that, however, the Hielscher Plan to remove Himmler had become sanctioned and obligatory for anybody who had the opportunity to act according to it. According to the statement of Hielscher and other credible witnesses, it cannot be denied that Sievers received that assignment.
If the removal of Himmler was justified, so was also, by the same token, the preparatory activity as a spy and informer which went with it.
Before turning to the answer to the question as to how far Sievers' activity could affect third persons, I feel it necessary to draw a short outline of Hielscher's plan of action and the position of Sievers.
It was not in vain that Hielscher gave us ample information on this subject. We have also heard other witnesses as Dr. Borkenau, Dr. Topf. Sievers gave us a clear outline of his tasks. All these depositions show a degree of agreement and unanimity which excludes any doubt in their truth.
Hielscher was one of the first of those few men who realized that action against the system could come only from the very ranks of the NSDAP. He had realized that only the removal of the top men of the NS-regime and the seizure of the government right at the top held out any prospects of success, and that no hopes, no hopes at all, should be placed upon a revolutionary development coming from below, from the rank and file of the people. Such a revolution would, within a short time, have been drowned in streams of blood without achieving anything.
This realization, however, made imperative four groups of measures upon which Hielscher has elaborated on 15 April:
(a) Preparation of the action by a well-camouflaged organization of trusted representatives and spies within the NSDAP, the Trojan horse policy.
(b) Placing qualified men of courage as closely as possible in the entourage of leading personalities of the NS among which Himmler was the most dangerous one.
(c) Removal of Himmler and other top men upon a given signal.
(d) Seizure of the government by an organization kept in readiness for this purpose.
Hielscher also had realized that despite a certain freedom of action for his activists, success could only be hoped for if and when each man obeyed his orders exclusively and in a spirit of strict discipline. Only thus could he keep everything in his hand and give the signal at the proper time. And in this connection I must emphatically stress the fact that Sievers, in accordance with that necessity of discipline, acted always in full agreement with Hielscher; that he secured orders from Hielscher at every important moment after giving him an exact situation report, and that in this manner Hielscher was kept closely informed about the game in which Sievers was involved and the hand he played in it. Sievers was nothing but the tool in the hand of the head of the movement. Therefore, I want to submit to the court that your verdict on Sievers will fall with the same weight upon his guiding spirit, Hielscher. Hielscher will be sentenced with Sievers, he will be acquitted with him. And thus Hielscher could at the conclusion of his examination declare with the same courage which he showed when deploying Sievers and other men of his in dangerous positions that he not only accepted but demanded to bear the sole responsibility for everything his follower Sievers was charged with in this trial.
Hielscher gives the following outline of Sievers' assignment:
He was to work within the Trojan horse, i.e. in the disguise of a zealous and enthusiastic collaborator, by (a) acting as an informer and spy, (b) using his influence in order to place others for the same purposes in similar positions or in positions where their work would not be interfered with, (c) covering up for, or if possible, rescuing members of the resistance movement when they were in danger;(d) and finally, removing Himmler when the moment for action had come.
This last point, however, was the very core of my client's assignment.
Everything also was subordinate to this aim, this order, and was subservient to its preparation and furtherance. From this point his whole conduct can be grasped and his actions judged.
And what did Sievers do within the scope of this assignment?
I can't, at this moment, reiterate in detail the arguments I elaborated upon in the first part of my plea. I have arrived at the conclusion that Sievers did not act as a participant in or accessory to the crimes under indictment. However, if one does assume that Sievers has to be found guilty on some of the counts as charged by the Prosecution, it will be my task to find the justification of this conduct before a forum of natural law, as transcending human law, and to place it before the court.
What is the explanation for the fact that Sievers remained at his post even after 1942 when the society "Ahnenerbe" became involved in medical experiments which possibly were to assume a criminal character. We should keep in mind that Sievers was assigned to effect the removal of Himmler and that he was the only person within the Hielscher group who had a chance of success. Thus he held the actual key position within the Hielscher movement, a position on which depended success or failure of the whole action.
His destiny was, from the beginning to the end, only in his hand; for Himmler was the most dangerous man in the Nazi system, since he as the chief of the German police and commander of the home army had all domestic armed forces at his disposal and thus was in a position to crush every uprising in its earliest stage. Himmler was able to run the government without Hitler, but not Hitler without Himmler. The removal of this man therefore came first, both in importance and in urgency. If the person of Himmler was overlooked or if he succeeded in escaping somehow, everything else became problematic. We may therefore use Himmler's importance as a yardstick for the importance of Sievers who was kept ready to strike in the former's closest entourage. To ask the question whether that position could be abandoned, would mean to answer that question in the negative.
Sievers was aware of the far-reaching consequence of such a decision. In this moreover he became involved in the deepest inner conflict of his life. It was a question of avoiding the greater of two evils and accepting the lesser, or of circumventing both. The latter would have been the easiest way out. The fact that Sievers became involved in this conflict bears witness to his sense of responsibility, his feeling for right and humane value. To be sure, he was not able to handle that conflict by himself. Too much depended on his decision, affecting not only himself but the whole of the resistance movement. We must put ourselves into the plane, into the soul, of a man who, on the one hand, felt the pressure of a revolting inner abhorrence of the things which he felt were in the making; but who, on the other hand, was aware of the fact that he would no longer be able to complete his task at the post assigned him, if he allowed himself to be guided by his personal feelings. Perhaps Sievers would have had the possibility of disappearing from his post without much ado and with no great disadvantage for himself.
Could he not have retired to a position with some harmless research undertaking? But by doing that Sievers would have become a deserter.
In this inner conflict he turned to Hielscher, and Hielscher decided after thorough deliberation and consultation:
Sievers remains at his post!
For it appeared impossible to forego the position in the entourage of Himmler. If Sievers left his post, he had to be placed in another position close to Himmler, or to be replaced by another man with the same tasks. Was that possible? Wouldn't he have arrived at the same crossroads again and again if he remained close to Himmler? Was it to be expected that another man would succeed, was there time to wait until he could succeed? Was Sievers not likely to arouse suspicion even if he took all possible precaution when motivating his resignation? For it had been stark lunacy to do it openly and under protest. Just imagine the danger in which such an act would have involved himself and his comrades. And who would have had any advantage from his resignation? And, another question: If Sievers' resignation could have prevented the human experiments at all, that still would have been only an insignificant partial success. As far as the entity of the great objective, the removal of Himmler and the NS-regime, was concerned, nothing would have been gained, nothing but a further postponement of the decision or altogether the impossibility of reaching such a decision owing to the loss of the actual key position. The consequence would have been still more victims of the NS-regime. Thus a partial success had to be sacrificed in the interest of the great objective.
If the members of the court will review all these questions, in their minds, it will become clear beyond any doubt that the decision taken by Hielscher was the only one possible.
And with that I arrive at the final, most important part of my defense plea, the question:
What was the line of action Sievers had to take at his post?
Doubtlessly he had to make certain concessions, i.e. he had to adjust his behavior to that of the persons he planned to remove. Every spy has to use camouflage and I am not telling a secret if I say that many a spy has donned the enemy's uniform in order to complete such an assignment in war times.
It is a known fact that the French General Giraud made good his escape from a German camp in 1942 wearing the uniform of a German General.
Everything Sievers did — his membership in the NSDAP from 1929 to 1931, his renewed membership in the NSDAP and SS at a later time, his high position within these organizations, his tenure of office as the business manager of the "Ahnenerbe" and his acceptance of a high rank in the SS, — was no doubt part of the camouflage which according to Hielscher, Dr. Borkenau, Dr. Topf and others was a necessary prerequisite, a camouflage used in the line of duty for the completion of the task of the defendant Sievers.
Obviously, no one will try to maintain that this camouflage which were used to approach a lawfully approved, aye, even desired aim, are as such criminal and non-permissible. The fact that the outward membership in the SS held by the defendant Sievers is therefore ipso facto excused by its purpose of camouflage. He can not be blamed, either, for posing at certain occasions as a good Nazi party member. That was part of his duties according to Hielscher's orders.
The career of the organizer, or of an activist in the German underground movement would have found an immediate end if he had not acted a Nazi in every word and in every movement.
I have to give even greater consideration to Sievers' consent and his further participation in the experiments with human beings and in the organization of the skeleton collection which involved injuries to third persons:
Only here the question arises: where are the limits of emergency, if it involves actions which in themselves are criminal acts. The answer to this question is the main point of the trial against Sievers:
And here the legal systems all over the world have the same principle:
The right violated by an act of emergency must be relatively more valuable than the protected or saved right.
What rights are competing with each other in the case of Sievers? On one side there is the existence of the civilization of the world, peace on earth, humanity, life and existence of millions of people who, through Hitler's criminal domination, were directly endangered or already violated. The new international law calls such actions crimes against peace and against humanity and threatens them with the most severe punishment. The Allied nations held these rights valuable enough to have their soldiers fight and die for them with enthusiasm.
On the other side we have the life of individual human beings, their physical safety, respect and deference for their personality, their freedom and free will which, too, certainly constitute rights of high value. There may have been hundreds of victims who had to suffer in this connection. However, it was a negligibly small number in comparison with the masses which Himmler, Hitler and their accomplices had already murdered or intended to murder.
I now ask:
Which of the two contesting fights is the more valuable one, in the sense of proportionality?
It shall be far from me to excuse or belittle the horrible things which have happened in the concentration camps, but in spite of all horror which I feel, I can only answer the question as follows:
The protection of civilization and of humanity is to be put above the life and health of single individuals, as much as one may pity these inevitable victims. And, therefore, it was necessary, absolutely necessary, to accept the violation of the less valuable rights characterized above, in order to save the more valuable ones, the great entirety. It was necessary for Sievers to remain in his position at the "Ahnenerbe" in order to be able to liquidate Himmler.
It would be easy to state now, afterwards, that Sievers could have acted differently, that he didn't have to go that far. But there is nobody who has told us so far: how. Now even the prosecutor attempted to or was able to make a concrete proposal to that effect. And even if it should be possible, even if today on calm reflection, a possible way out could be found, it cannot be hold against the defendant Sievers if he did not think of it at that time. One can really put oneself in his situation at that time and take its psychological effect into consideration. Only then can one imagine what amount of reflection, what amount of keenness in selecting his means could be asked of him. This, too, is a recognized principle and explained in detail at Wharton, article 621. Everybody must, admit, however, that it was enormously difficult to find one's way in this labyrinth of demands and sentiments, to keep exactly to the right path, and not to overstep, not even by a hair's breadth, the fluctuating limits of emergency. And we also knew how much Sievers fought with himself for a solution of this problem. If afterwards you state that only in the choice of his means did he make a slight mistake, he is, after all, fully excused through the psychological effects of situation at that time; one must not ask too much of one who was to act in a dangerous situation.
Honored Judges, others, too, faced the same question Sievers had to face. What for instance would you do with the camp doctors who knew about those experiments in the concentration camps and prepared them and assisted the doctors accused here? Would you sentence these people for complicity? What does for instance, the witness Neff say on 18 December 1946?
I am aware of the responsibility and of the consequences. It was not only the court martial, not only the fear of Dr. Rascher, but the duty placed upon me by my comrades to hold out there, in order to prevent what I could.
Would you sentence the Lieutenant of the Ghetto, Rosenblatt at Litzmannstadet, who, according to the testimony of the witness Hielscher was forced, personally to select the inmates of the ghetto for the gassing? Would Rosenblatt claim in vain, that, after hard struggles with himself, he accepted the duty placed upon him by his comrades to hold out in order to prevent even worse things.
We see, that in the last analysis made exactly the same decision Sievers made.
And still Sievers tried to make up for all he had to tolerate and witness by helping in other ways. Did he not save many? Sievers participated in a decisive way in the prevention of further experiments with low pressure chambers, with dry cold in the mountains, in the prevention of the application of the "n" substance and others. He saved three hundred Norwegian students from the concentration camp at the last moment. By warning him in time, he helped a Dutch professor to flee to Sweden. He alleviated the fate of many others These, however, are only a few examples to which I don't want to add any more for lack of time. You have learned of many more through the affidavits submitted.
And especially I don't want you to forget, honorable judges, that Sievers not only had to witness the sufferings of other, he was also ready to put his own life at stake and to sacrifice it in case of failure.
Put yourself in his position, and you will admit enormous courage and readiness for sacrifice were needed to hold out in the position of the defendant Sievers and to carry through. Did he not see how almost daily other men from the resistance movement were hunted down by the Gestapo, by the Security Service and the People's Court? Did he not have to fear the same fate every hour of his life, and was it not likely that daily temptation to withdraw from this dangerous task would assume gigantic forms?
Gentlemen of the high Tribunal, As far as it was possible in this short period of time, I have attempted to demonstrate the actual and legal side of Siever's activities in the Heilscher resistance group. Even if Sievers should be found guilty of participation in inadmissible experiments on human beings, it must be taken into consideration that he did no more that what he was forced to do by his orders. In no place and at no time did he do anything which went beyond the orders given to him. What he did, he had to do, in order to fulfill the great and high task which fate had assigned to him. You, gentlemen of the tribunal, with your imperturbable sense of justice will weigh all pros and cons of the Sievers case, and I am firmly convinced that your verdict in the case of Sievers will be one of "not guilty", for which I plead herewith. Thank you.
THE PRESIDENT: The Tribunal will now be in recess until 0930 tomorrow morning.