1947-07-17, #4: Doctors' Trial (late morning)

Dr. Fritz, counsel for defendant Gerhard Rose, presents his closing argument

BY DR. FRITZ (For the defendant Rose):

Mr. President, Your Honors:

In my opening address, which I had the honor to deliver before you on 30 January 1947, I did express the hope, that the evidence might prove that the defendant Rose neither took a part in the planning nor in the performance of the medical experiments which are under indictment. Now after the closing of evidence, you, Your Honors, will have to examine and to decide whether my hope has been fulfilled. Before you retire to consider the verdict, I wish to say to you that I do not think I was wrong in the conviction then expressed, and that for the following reasons:

1) As far as the allegation is concerned that my client took part in a conspiracy for the committal of war crimes and crimes against humanity, I have explained in the closing brief which I submitted on behalf of the defendant Rose, why my client could not have had a part in such conspiracy for reasons of law and of facts.

Concerning the meetings of the consulting physicians which Mr. McHaney considers as typical meetings of conspirators, I did write:

The participation of the defendant Rose himself at the consultant conferences is shown clearly in his printed lectures lying before us and his remarks during the discussions at these conferences. From them it is quite clear that the activity of the defendant Rose at these conferences was purely scientific and in no way objectionable.

To this must be added that, after Ding's lecture at the third consultants conference in the year 1943, in which the latter reported concerning his experiments on human beings in the concentration camp of Buchenwald, Professor Rose protested publicly against the undertaking of such experiments, as fact which I shall have to go into more closely later on. This uncontested fact is not in any way in keeping with the behavior of a conspirator.

Furthermore the lecture which the defendant Rose delivered on 17 February 1944 — in wartime therefore — in Switzerland to the medical association at Basle speaks against his participation in the alleged conspiracy.

In this lecture he reported not only concerning his own DDT — research, but discussed also, among other things, the typhus experiments carried out on human beings in Buchenwald by Ding. This lecture, which caused a stir in medical circles abroad, both in neutral and hostile countries, and a further lecture on the same subject, which he delivered in Turkey in the summer of 1944 — also in war time — are the best proof that Professor Rose was aiming in his work at helping the whole of mankind — without distinction between friend or enemy — in the combating of epidemics. Thus for instance the manuscript of his Basle lecture was immediately, with his consent, put by the Swiss at the disposal of the international Red Cross and, through this, at the disposal of the medical service of the allies, so that the experiences mentioned in it encountered in combating typhus and malaria should benefit all without distinction. Here it is clearly shown that Professor Rose acted, not as a conspirator, but as a free doctor and scientist, which might almost have led to criminal proceedings being instituted against him for reason.

At all events it is seen both from my previous detailed arguments as also from those which I still have to deliver when speaking of the malaria and typhus experiments, that the defendant Rose in no case belonged to the plotters. But one who is said to belong to the group of conspirators must surely have a share in the plot. For in the case of conspiracy surely only he should answer fully for the actions of others who — even if only in a subordinate position has taken part in the formation of the plot. From this, however, it must be concluded that whoever does not take part at all in the shaping of a common plan, can also not hear full responsibility for what others have done. Thus if proof is lacking that someone has taken part in a common planning, then too it cannot be established either that he had a share in the alleged conspiracy.

For there must be a limit to collective responsibility. I am of the opinion that the common plan just forms this limit. Whoever does not belong to the planners does not belong either to the group of conspirators.

The Prosecution wants to hold my client responsible for the malaria experiments of Dr. Schilling in Dachau. My point is primarily that you, Your Honors, for technical reasons alone are unable to examine all of the essential material.

In the indictment no charges to this effect are raised against Professor Rose. He has not been indicted at all for this matter. It is not enough for the Prosecution to have made an oral accusation against my client in the course of the trial. Only a new indictment could form the basis for a material decision. In the event the High Tribunal should not believe this phase of the law, I shall in my closing brief turn to the question as to whether the supplying of the serums for tropical diseases constituted a participation in this research. I have among other things stated:

The Tribunal will have to decide whether these above mentioned activities of the Department of Tropical Diseases of the Robert Koch Institute under the management of the defendant Rose or his own activities constitute participation in the meaning of the Penal Code in the accounts of Professor Schilling on the part of the defendant Rose. In my opinion this decision can only be a negative one, for the following reasons:

The delivery of material necessary for malaria research such as Anopheles eggs and malaria cultures was one of the official duties of the Department for Tropical Diseases of the Robert Koch Institute. This Department has a section which dealt exclusively with these matters. This can be seen from both the yearly reports of the Robert Koch Institute and from the report covering the third conference east of consulting specialists discussing work projects (dritter Arbeitstagung Ost der Beratenden Facharzte). Deliveries of this kind are internationally common practice and were never denied by the defendant Rose. It is also common practice to use the organs of human corpses for the carrying out of scientific research. The supposition for such deliveries are, that they are requested either by well known institutes or by renounced research scientists. It cannot be denied, that Schilling, a co-worker of Robert Koch and a member of the malaria commission of the league of Nations, was famous as a malaria research scientist. In a case of this kind the non-delivery of such material would have been an express violation of traditional practice and of official duty. It is also not international usage for the orderer to be questioned about the intended use of the material before its delivery.

Concerning the question as to whether my client should have certain misgivings to give the material to Schilling, I state that the defendant Rose himself is a well known malaria research scientist. Malaria research was the main study of his department at the Robert Koch Institute in Berlin and also later in Pfafferode. Professor Rose as an experienced malaria scientist knew of course that this form of malaria is not a dangerous one and that no complications are to be expected from it.

I formed the opinion that the experimental work carried out by Dr. Schilling was in rather a different category from the majority of experiments which have been described in the trials at Nurnberg and elsewhere. It appears that this investigations were carried out carefully and with a reasonable regard to the safety of the subjects. As he was working with benign tertian malaria the allegation that three hundred people died in the course of the experiments is obviously grotesquely untrue.

Thus, Your Honors, the famous Entomologist, Professor Kenneth Mellanby at the famous Hygiene Tropical Institute in London wrote me a letter dated 9 July 1947 after the close of the evidence. He stayed in Nurnberg a week during this trial. Rose's special field is, as you know, malaria research, and regarding it's concept and method of research, I said in my closing brief that Rose personally was the prototype of a worker above reproach in the field of malaria research and with regard to his car for the well-being of his malaria patients, as shown by the investigations undertaken by the competent American authorities. He risked his own life, in order to assure the orderly handing over of his Malaria Research Institute in Pfafferode to the Americans — and also to insure continued regular care and medical treatment for his patients. It would be completely incomprehensible if such a man were to be made responsible for the technical errors and negligence of another who was not even under his influence.

In the Indictment my client is charged with responsibility for the typhus experiments of Professor Haagen and with participation in them.

In order to reach a decision concerning the question whether a punishable behavior on the part of the defendant Rose is established, the court will have to examine the following:

1. Whether Professor Rose, in his capacity as consulting hygienist with the Medical Inspection of the Luftwaffe, had any commanding authority or the right and obligation of supervision at all over Professor Eugen Haagen, at the University of Strasbourg and

2. Whether the defendant Rose was a participant in the experiments with typhus vaccine conducted by Haagen in the concentration camps at Natzweiler and Schirmeck in a penally relevant form, in which case it can be left completely undecided whether Haagen himself liable to punishment or not.

In my closing brief and in my written reply to the closing brief of the Prosecution I have examined this question carefully and especially in regard to the exchange of correspondence between Haagen and Rose. Because of the lack of time it is completely impossible within the frame work of this plea to explain these difficult questions. I, therefore, resist from doing so but shall at least say this.

In my opinion it is absolutely impossible, according to the evidence submitted in this direction, to arrive in our trial at a decision which would eliminate all mistakes. The questions under examination which were raised by the actual course of events as well as by their connection with medical problems, are so complicated that at this juncture they simply cannot be decided by medically untrained jurists without the expert opinion of a suitable and non partisan medical expert.

It is regretted that such an expert opinion is not available. One cannot take the responsibility for punishing a man like Rose who had so vague a relationship to Haagen, before in a trial against Professor Haagen the question has been decided whether the latter himself has made himself punishable.

Finally, my client is made responsible in the Indictment for typhus experiments in the Concentration Camp Buchenwald and is charged with participation in these experiments.

During the verbal proceedings the Prosecution has made the following assertions in this connection:

On 29 December 1941 Professor Rose took part in the conference at the Ministry of the Interior during which the matter of the carrying out of the experiments for the purpose of testing the effectiveness of typhus vaccine was decided. In order to substantiate this assertion, the Prosecution referred to the affidavit of the Kapo (camps policeman) Arthur Dietzsch, dated 26 December 1946, who of course did not take part in this conference and who is now, after five years, repeating what he claims to have heard at that time. In this connection the following is to be said:

1. First of all, Professor Rose has, during his direct examination vehemently denied that he ever took part in such a conference or that he ever heard of it before the end of the war.

2. In the report on this conference, written by Ministerialrat [Ministerial Councilman] Bieber, those who attended are listed. Professor Rose, however is not among them.

3. In the entry of 29 December 1941 in Ding's diary, which deals with this conference and lists the participants, Professor Rose's name is missing.

4. Neither does Professor Reiter, of whom the defense as well as the prosecution submitted an affidavit, mention the defendant Rose in this connection.

These above mentioned facts aLone are entirely sufficient to refute the contradictory assertions of Kapo Dietzsch.

The Prosecution furthermore claims "that through the defendant Rose the Robert-Koch-Institute delivered the bacilli" with which part of the persons to be experimented on in Buchenwald were infected. This statement was made after the entry on 26 January 1943 from Ding's diary had been read out. In his affidavit of 26 December 1946 the Kapo Arthur Dietzsch also claims under figure 5 that the material for infection had come from the Robert-Koch-Institute in Berlin. But neither the above mentioned note in Ding's Diary nor Dietzsch state that the material for infection was delivered through the defendant Rose. As is well known, the typhus department of the Berlin-Koch-Institute, it can only have been done through Professor Gildemeister, especially since Dr. Ding formerly received his training in the typhus department and not in the department for tropical medicine of the Robert-Koch-Institute. If the Prosecution links Professor Rose with this, then we have here merely a statement for the correctness of which no proof has been submitted and the incorrectness of which already is revealed by the fact that in his department Professor Rose did not have any typhus virus at all.

On account of Professor Rose's one and only visit on 17 March 1942 to the Department for Typhus and Virus research in Buchenwald, the Prosecution made statements which are as incorrect as they are unproved. Thus the Prosecution claimed first of all that Professor Rose made this visit in his capacity of originator of the plans for the experiments. The real reason for this visit, however, is revealed by the testimony given by Professor Rose himself. He accepted an invitation Gildemeister had commanded in order to dispel the scruples Rose had in regard to the experiments which till then were carried out on volunteers. The Prosecution's further assertion that during this visit Professor Rose took part in the infection of persons to be experimented on, is incorrect also.

In reality this one and only visit took place as the entries in Ding's diary reveal beyond a doubt, on March 1943, in the middle of the process of carrying out the experiments, at a time when all persons to be experimented on had fever already, while the infections had been carried out as early as the period between 6 January and 3 March 1942.

If Professor Rose had really participated in these infections, his one and only visit to Buchenwald could never have caused in him the reaction it did, for, as numerous testimonials and affidavits have proved beyond a doubt and as by the way, the Prosecution, too, has admitted this visit in accordance with his basic convictions pertaining to this problem also expressed elsewhere, caused him to protest not only to the Reich Health Leader Dr. Conti, and to President Gildemeister, but also before a large circle, that is publicly, during the third convention of medical consulting specialists in May 1943, against the carrying out of the typhus experiments in Buchenwald. He never denied this visit to Buchenwald, since exactly this visit was the starting point for his efforts to abolish experiments on human beings as a basic condition for the approved use of the vaccine.

These protests play an important part in judging the Prosecution's accusation against Professor Rose that for the carrying out of a series of experiments in Buchenwald he is supposed to have put at the disposal of Dr. Ding typhus vaccine, produced according to the process discovered by Combiescu and Zotta (the so called Bukarest vaccine). To prove this assertion the Prosecution first of all rests its accusation on the entry from 19 August 1942 to 4 September 1942 in Ding's diary, in which it is stated among other things that this vaccine had been made available by Professor Rose who in turn had received it from naval physician Professor Ruge of Budarest. In this connection the Prosecution furthermore introduced a letter, dated 16 May 1942, from Mrugowsky to Rose in which Professor Rose is asked to send the vaccine.

The rest of the letter reveals that this related to typhus lung Vaccine. Therefore it can be assumed that the samples of the Bukarest vaccine were meant. The Bukarest vaccine is a vaccine produced from the lungs of dogs. It is true that at first sight the contents of this letter, in connection with the above mentioned entries in Ding's diary seem to justify the Prosecution's statement. A closer examination of the facts, however, shows that conclusive proof of the accusation that Professor Rose made available the Bukarest vaccine for the purpose of testing it on human beings in Buchenwald, cannot be considered as having been established. As I mentioned before, it cannot be ignored that as late as May 1943, that is one year after he had received Mrugowsky's letter of 16 May 1942 and about half a year after the series of experiments with the Bukarest vaccine had been carried out in Buchenwald, Professor Rose protested at the convention of the consulting specialists against the carrying out of these experiments. He did so immediately after Dr. Ding had, at this convention, delivered his lecture on the results of his experiments carried out in Buchenwald, including those with Bukarest vaccine. Had Professor Rose really made available the Bukarest vaccine, then it can be assumed almost with certainty that Dr. Ding who was known to be very angry, would, in answering the protests, have remonstrated Professor Rose with having himself (Rose) put the Bukarest vaccine at this disposal. But nothing of the sort happened. We know from witness Kogon that for days after he had returned to Buchenwald, Dr. Ding occupied himself with Professor Rose's protest. To this witness he expressed his anger about Professor Rose in very drastic words and told him that at the advisory convention there remained nothing for him to do but to defend himself by stating that a "top secret" matter was involved and that he had made it clear to Professor Rose that there existed fields of activities which even Professor Rose would have to hold in respect.

It seems obvious that he would have told the witness Kogon that he could not understand what was the matter with Professor Rose since Rose himself had put the Bukarest vaccine at [illegible]. But Ding reported on the testing of the Bukarest vaccine not only to the 3rd advisory convention but also in his publication in the magazine for hygiene. Here, too, he failed to mention Professor Rose's name. On a foot note, however, he expressly referred to his cooperation with Professor Gildemeister.

After all this I am of the opinion that the Prosecution's statement that Professor Rose put the Bukarest vaccine at disposal for tests in the series of experiments in Buchenwald has not been proved.

The incidents discussed just now which are connected with the testing of the Bukarest vaccine happened in 1942. But the war continued and it exacted every day and on all fronts, from friend and foe as well as at home, many thousands of human lives, many of them as victims of a typhus epidemic, the existence of which was admitted by the Prosecution. It is a historical fact that for thousands of years epidemics, and especially typhus, have played a devastating part in the life of nations.

After the danger of typhus had already been a serious problem during the world war of 1914/18, a catastrophe of unprecedented proportions occurred in Russia afterwards.

Professor Tarassevitch estimates that during 1918 — 21, 25 to 30 million became typhus casualties of which 2½ to 3 million died. During this trial, not only my client, but also other persons well equipped with expert expert knowledge have commented on the catastrophic typhus situation during the last war. In this connection it might suffice to refer to a letter, dated 3 February 1942, from the president of the Regional Labor office of West, according to which until shortly before the date of the letter about 15,000 Russian prisoners of war died of typhus every day.

It stands to reason that in view of this catastrophic typhus situation the responsible authorities tried by all means to increase the production of vaccine. It was clear that it would be impossible to produce by the Weigl process in sufficient quantities the vaccine obtained from the intestines of lice, which is known and recognized as being effective. The defendant Rose has clearly described the difficulties of its production. In this situation, that is in September 1943, Rose was commissioned by the Brigadier General Schreiber to go to Copenhagen and to try to enlist the Statens Serum Institute there in the production of typhus vaccine. There he came to know the Ipsen murine typhus won from the liver of mice which, according to Professor Ipsen, was not only far more effective than all hitherto known vaccine, but which also could produced more easily in larger quantities. Professor Rose did not succeed in inducing the Statens-Serum Institute to produce typhus vaccine from lice. But everybody will approve it, after his return from Copenhagen, he considered it his obvious duty to inform the experts in Germany of the knowledge which he had gained on this trip about Ipsen's vaccine which so far had been unknown in Germany. He did so in his report on his mission dated 29 September 1943. Convinced of the correctness of the explanations given him in Copenhagen and in view of the enormous number of victims dying of typhus every day, Rose asked Mrugowsky on 2 December 1943 whether there still existed a possibility of testing the vaccine in Buchenwald.

As it can be clearly seen from the earlier mentioned report on his official trip, Professor Rose tried to get no less than six different departments interested in the Ipsen vaccine. Therefore it appears credible that, until document NO-1186 was submitted to him, he no longer remembered having written in this matter also to Mrugowsky directly. The prosecution reproached Rose and said that he should have remembered an act of such importance as the sending of this letter to Mrugowsky. By that it wanted to undermine the credibility of my client. However, the prosecution forgets in this connection that Professor Rose concerned himself with the necessity of testing this vaccine when already drafting his report on his official trip of 23 September 1943. The facts that the name Mrugowsky is not being mentioned in this report on his official trip, and that he, Rose, never learned about the testing of the Copenhagen vaccine in the Buchenwald series of experiments and about the result of his test, may be the reason for the assumption, before the letter to Mrugowsky was submitted to him, not to have realized the idea which he may have had before, namely to contact also Mrugowsky on account of this vaccine.

However, after this document has been submitted, it is to be assumed that this inquiry was finally the reason for the order of the Reich physician SS Grawitz to test Copenhagen vaccine for its effect on human beings in the Buchenwald experimental series, without Rose participating any more in the conferences and decisions concerning this matter. It is not known which other departments were also connected with this matter and whether the vaccine which Rose had in possession was used at all. Professor Rose himself does not remember to having supplied the SS with any of this vaccine and the witness BLOCK, who distributed the vaccine tests to the individual departments, does also not know anything about it. Dr Orskow says that even the quantity given to Rose was small. Therefore, it remains doubtful, whether the vaccine which was later used in Buchenwald on the experimental series for the testing of the Copenhagen vaccine came from Rose at all.

When judging Rose's inquiry from Mrugowsky, one has first of all to consider, that Rose was always convinced that the prisoners which were assigned for the carrying out of these experiments in Buchenwald were exclusively criminals who were legally sentenced to death. This was assured to him not only by Gildemeister and Conti, but this assurance was also especially given by Dr. Ding during the third meeting of the consulting physicians in May 1943, after Rose protested, during the meeting, against the carrying out of experiments on human beings in Buchenwald. One reason for the fact that Rose did not doubt the correctness of these explanations was, that during his visit in Buchenwald, he was told that among the experimental subjects were two prisoners from the prison of Berlin Moabit, who suffered typhus already prior to their being sentenced to death.

For the rest, disregarding the above fact entirely, it is objectively without doubt that the Reich Criminal Police selected and assigned only prisoners in protective custody and habitual criminals — that is exclusively arch-criminals — of German nationality, for the carrying out of the experiments with the Copenhagen vaccine in Buchenwald. This is first of all clearly evident from the document NO-1196 Exhibit 321.

Professor Rose as hygienist knew, of course, already at that time that also outside of Germany criminals were used for perilous medical experiments and the physicians and researches participating in these experiments were not subjected to legal proceedings. Based on his research work of many years he, for instance, did not only know about the experiments of Strong with live plague bacilli and his Beri-Beri experiments, but also about other examples from world's literature. In addition, in the field of typhus he naturally knew about the fundamental infection experiments of Yersin in Saigoon, of Sergent and assistants in North Africa, of McCalla and Brereton in the USA.

In addition, he also knew that the protective effect of typhus vaccines were re-tested by Blanc and Baltazard in Marocco and by Veintemillas in Mexico, who reinfected virulent groups. Thus, after his personal point of view was not adopted, Professor Rose could have no scruples after all these facts, to tell the departments commissioned by the State with the carrying-out of such experiments about the possibility of an increase in the production of vaccines with improved effect.

Here Professor Rose encountered the fact that the civil department, competent for the admission and testing of new vaccines in Germany, did on no account agree to admit new vaccines during the epidemic, if they were not previously tested on human beings.

He tried — and this has been established without a doubt — to use his influence against this attitude and to change it. But he remained unsuccessful, even though he applied to a wide circle of experts. The majority of them surely agreed with his point of view, however, no one of them, including Rose, had the possibility to dissuade the really decisive departments as e.g. Himmler, Grawitz, Conti and his expert advisor, Gildemeister, from the decisions they had taken in this connection.

Thus, he had to put up with the facts. As hygienist of distinction, he regarded himself as partly responsible for the combating of typhus. One can not demand from him that at that time he should not have tried to do the utmost for every possible progress in the development of typhus vaccine during this during this catastrophe which demanded millions of victims, and this just because he did not agree with the testing principles of the responsible Governmental departments. The inquiry Rose to Mrugowsky of 2 December 1943 must be judged according to these points of view. This inquiry shows clearly that Professor Rose could not give an order for the carrying-out of such an experimental series in Buchenwald. It even shows that at that time he was not even informed about the position of the typhus experiments in Buchenwald.

If Professor Rose would have omitted to point out the possibility for an increase of the typhus vaccine production which became known to him, he would have acted against his duties towards the general ethic. This omission would not have resulted in a personal disadvantage for him, but in a disadvantage for the bulk of those endangered by typhus. Thus professor Rose acted as he did, in order to protect a great number of persons of German foreign nationality from a serious danger.

As already stated, Professor Rose tried repeatedly, and harder that it could be expected from him, to change the principle attitude of his civilian superiors. He did not succeed in this, because here he had no influence on decisions concerning typhus. However, in his direct military sphere, he successfully carried by his advising influence and he recommended and gained the admission of a number of vaccines which were not tested first on human beings.

The action of the defendant Rose, which can be seen from his sending the letter of 2 December 1943 to Mrugowsky, I can judge legally as follows:

Considering the mere facts, only that person can be the perpetrator of, or accessory to, a punishable action who himself performs executive actions.

I have already demonstrated previously that neither during his single visit to Buchenwald nor during the following period of time did the defendant Rose participate in the actual execution of the typhus experiments in Buchenwald.

Considering the case subjectively, only he can be the perpetrator or accessory who intends to perform the deed as his own.

Above all, it has been positively proved by his attitude, after he had learned that experiments of such a nature were conducted in compliance with orders by an organization of which he was not a member, namely the SS, that the defendant Rose did not consent to the typhus experiments in the Buchenwald concentration camp, but that, on the contrary, he disapproved of them, so that all the less he intended the actions there as such.

This declining attitude is furthermore shown in his behavior after his single visit to Buchenwald and after Dr. Ding's report on the third Deliberate Meeting in May 1943.

According to the foregoing independent or accessory action of the defendant Rose as regards the typhus experiments in Buchenwald is to be eliminated.

He remains to be examined as an abettor or aiding person.

First of all, as far as abetment is concerned, in my opinion the influence upon the will of the perpetrator, e.g. in form of a desire or a suggestion or a request, can be considered as such. However, if the perpetrator has decided positively already to commit a certain deed, it is no longer possible to influence his will in this way and thereby it is impossible to induce the perpetrator to commit the crime.

As to the pre-meditated intention of the abettor, it is required that he also actually premeditated all essential characteristic features of the punishable action.

In case the crime committed does not conform to the one which the better pre-meditated, the abettor dolus is lacking.

For the case of the defendant Rose it ensues in this instance that he did not commit a deliberate and punishable abetment through his letter to Mrugowsky of 2 December 1943. For at that time in Buchenwald the experiment series for testing of typhus vaccines had been in operation since almost two years, and all persons: concerned with the planning and execution of these experiments were firmly decided, prior to the time when the letter had been mailed, to conduct the experiment series in the way planned by them, and, it is true, with the intention to test all typhus vaccines on hand as to their protective effect which had not yet been adequately tested. Furthermore, the defendant Rose could not know that the persons used for these experiment's were not exclusively criminals who had been legally sentenced to death and who had reported voluntarily. I shall explain this in detail in another passage.

If this eliminates a participation of the defendant Rose by abetting, it remains to be examined whether he knowingly aided in the execution of the typhus experiments in Buchenwald by mailing his letter of 2 December 1943.

There is no doubt that, it is true such assistance can be rendered by psychical means, e.g. by giving an advice. But for the purpose of fulfilling the requirements of the existence of the state of affairs of punishable assistance it is necessary that the assistant in some way psychologically influence the perpetrator in the sense of inducing the perpetrator to commit the crime, in which instance it may suffice if thereby the last checks and objections are eliminated. But this result is the minimum which is to he demanded of the psychical influence of the assistant, to be able to speak of assistance in the criminal sense.

Beyond that the deliberate rendering of assistance must be in connection with the concrete deed which was committed. If the perpetrator actually commits another deed than that pre-meditated by the aiding person, the way of acting of the aiding person is not punishable.

As I have already explained in detail when examining the question of abetment, that the typhus experiment series in Buchenwald had been in operation for a long time and the persons concerned with the execution of these experiments had been firmly decided to conduct same until such a time as the result at which they were aiming had been achieved. So, the letter of the defendant Rose was not fit in any way to have a psychologically influencing result.

Moreover, it showed pre-mediation as to a deed other than the one actually committed, namely the execution of medical experiments on human beings by utilizing criminals legally sentenced to death, who had reported voluntarily. Thus, when mailing his letter to Mrugowsky he did not do so under full realization of the unlawfulness of these experiments on human beings. He is not guilty of a subjective guilt and there fore he is not guilty of punishable assistance.

Thus, on the basis of the legal detailed explanations just made, I come to the conclusion that the defendant Rose has participated in the execution of the typhus experiments in the Buchenwald concentration camp neither as perpetrator, nor as abettor, nor as assistant. Furthermore, that he did not participate in the planning of same and that he did not even approve of their execution through the SS, of which he was not even a member.

So the pre-requisites as listed under Article II, par. 2 of the Control Council Law No. 10 are lacking, which should be existing if the defendant Rose were to be considered as guilty.

In the case that the Tribunal is not going to share my legal conception which I explained just now, and should answer the question of participating of the defendant Rose in the typhus experiments in the Buchenwald Concentration Camp in a criminally relevant form in the affirmative, it is furthermore to be examined whether the defendant Rose has reasons on his part which eliminate the culpability of his actions or guilt, or both.

One must arrive at this result if one considers it to be proved that the defendant Rose acted in a emergency.

Such an emergency exists if there remains no other way than committing an action which constitutes the seemingly state of affairs of a criminal action for the purpose of protecting a legal value, or to fulfill a duty imposed or acknowledged by the Law.

In all civilized states the internal legislation and jurisdiction deal with the solution of problems of the criminal law which arise from cases of such emergency.

In my closing brief, I will give a brief comparative application of International Domestic or Emergency Law, together with assumptions or details, in order to be able to affirm such an emergency. I come to the following results:

The principle of recognizing an emergency within the limits drawn here as a reason for exculpation, which exempts the person acting in a state of necessity from punishment, consequently is so firmly anchored in the legal consciousness of our time that it must be accepted as a generally recognized legal principle of the civilized Nations. As such it can claim to be recognized in this trial too.

But there is yet a second reason for this. Recognized International Law accepts the legal concept of "self preservation". Theory and practice agree that the infringement of laws and prohibitions of International Law are admissible when such infringement is emergency to every actual urgent danger which threatens the essential values of life and no other way is available to remove this danger.

Substantially this is nothing else but the emergency concept of the domestic law, except that the prerequisites for the existence of the right of self preservation according to International Law are somewhat more lenient than those required for a state of emergency according to Domestic law.

The cases usually quoted in this connection in literary works refer almost without exception to violations of the rights of territorial sovereignty of another state for the purpose of warding off some evil to one's own sphere of legal values. Never has it been asserted, however, that the case of the rights of self-preservation was restricted to such cases. There is moreover no intrinsic reason whatsoever, why this right should not be asserted also in the case of some dangerous epidemic.

In this respect the right for self preservation seems even more justified, since the squashing of the typhus epidemic in the further course of the last war was not only in the interests of Germany but also of Germany's enemies, their civilian populations, their armies and especially their prisoners of war in German captivity to whom the epidemic had already spread and might easily have spread further, thus afflicting the whole world. Therefore the objection — which by the way is rejected also by the expert witness for the Prosecution, Professor Ivy, that the necessity of war does not justify a violation of rights cannot be raised here. Because after all, fighting this typhus epidemic was not a war operation in the interests of Germany only, but it was directed to check a danger for the whole world which had arisen during the war.

The leading manual of International Law by Oppenheim expressly confirms that the right of self-preservation is admissible also for the elimination of states of emergency caused by forces of nature.

It will have to be examined whether in the case of defendant Rose all of these prerequisites are present in order to have to affirm a state of emergency.

I have already pointed out before that during the second half of the year 1943 an actual danger to the life and health of millions of people in Germany and the Eastern territories under German occupation did exist due to typhus.

This fact is absolutely indisputable and has already been accepted by the Tribunal, when the President, on the occasion of the hearing of Witness Haagen at the session of 18 June 1947 declared:

The Tribunal is quite aware that typhus is a very serious and dangerous disease and constitutes a great menace to humanity and that it was a very great danger and menace to Germany during the last war. We have repeatedly heard about that and it's not denied.

Hundreds of thousands have already succumbed to this disease during the last war up to the year 1943 as can be seen simply from document NI-5222 — Rose Exhibit 56 already mentioned by me. As the history of typhus with which defendant Rose was already familiar of course at that time shows and as he further knew from his own experience from his activity in combating typhus in Eastern Asia, there existed at that time the danger of a catastrophe of undreamt of magnitude.

It was moreover certain that the danger could not be stemmed by delousing. Vaccinating all endangered persons also was not possible to the extent which would have been necessary, as the vaccine of Weigl which was known to be effective could not possibly be produced in the required quantity. As regards the other known vaccines the necessary experience concerning their effectiveness was lacking, to undertake the responsibility of their production on a large scale and to use them.

To await the epidemiological evaluation of these vaccines was not feasible. It would have taken years and claimed untold sacrifices of human life. A conclusive clarification of the problem, alone in the experiments with animals, is not possible for scientific reasons. The competent scientists did not agree at all on the effectiveness of the various vaccines. For the authorities responsible for the checking of this danger, there remained nothing else to do therefore in order to clarify all doubtful questions with the least possible delay, but to give orders for these vaccines to be tried out on human beings.

The carrying out of these experiments on human beings consequently was a necessity caused by the typhus catastrophe which was spreading as witness Ivy also has recognized necessities conditioned by the war.

It had become impossible to find volunteers for this experiment.

Incidentally it might perhaps not at all have been justifiable from a moral as well as from an ethical viewpoint to use volunteers for this life endangering experiment. For the German Penal Code contains in its Art. 216 the following stipulation:

If somebody has been prevailed upon to kill by the express and serious demand of the killed a sentence of imprisonment of not less than three years is to be pronounced.

The attempt is punishable.

Since "express and serious demand" is a much narrower definition than a mere consent, it follows quite clearly that according to the German material criminal law the killing of a person even with his consent is not exempt from punishment. According to this it would be quite impossible in Germany to carry out a life endangering medical experiment on a human being at all, except if the state makes available the person on whom the experiment is to be carried out, for instance in the form of a criminal sentenced to death, and thereby assumes the responsibility protecting the experimenter from criminal proceedings as the state also does in the case of its soldiers who during the war must kill intentionally in action.

Thus also in the present case 43 persons in protective custody and professional criminals were made available by the Reich Criminal Police Office in Berlin for the carrying out of this experiment, 30 of whom were selected and used for the testing of the Copenhagen vaccine.

Taking into consideration the average death-rate with typhus, there could be counted on the deaths of a few persons in the course of this experiment in the worst case, whereas on the other hand the lives of tens of thousands were saved, and that quite independently of whether the Copenhagen vaccine stood the test or not.

For if it had proved good, it would without doubt have been produced and injected in large quantities. If, contrary to the expectations that had been nourished with regard to this vaccine after the animal experiments, it did not prove good — as it then actually was the case — then its production and injection without a sufficient protective effect was prevented and therefore likewise the lives of innumerable persons were saved. Thus, there can be no doubt it that — already with regard to numbers — no inappropriate means was used for the averting of an imminent loss and that the loss to be expected due to the experiment was by no means greater than the imminent loss.

The defendant Rose could not be expected to watch inactively how the catastrophe was completed. In this connection there must be taken into consideration that he, in his capacity of hygienist in an exposed position, was under the obligation to do everything in order to help avert the imminent danger known to him. This obligation to help hundreds of thousands of persons threatened by typhus was on the other hand faced by the obligation always to act according to the ethical principles of the medical profession. There can be no doubt at all that the defendant Rose has suffered extremely under the conflict of these obligations and has seriously and carefully weighed these two obligations. This is guaranteed by his personality described to us by different parties in the homeland and abroad. If he decided in favor of the former then he regarded it at that time to be his primary duty. Not the least reason for his making this decision was that he had spent the greatest and most decisive part of his career as a research scientist not in Germany but abroad. Thus he knew that also abroad life-endangering medical experiments have been carried out in numerous cases on volunteers with whose genuine voluntary status may be regarded as highly doubtful and on criminals sentenced to death.

For in this connection I wish to stress emphatically — and that relates to the subjective part of this case — that the defendant Rose at that time proceeded from, could and had to proceed from the belief that with the Buchenwald typhus experiments exclusively criminals were used who had been sentenced to death and who had volunteered.

In my closing brief I explained in detail why the defendant had to hold such opinions and I come to the conclusion that a punishment of the defendant Rose is out of the question, not merely because of a lack of participation in the experiments on human beings in a form relevant to penal law but also because he acted in a state of emergency.

Your Honors, the two Prosecution experts, Professor Ivy and Professor Leibrand, both have testified that medical experiments on living human beings may only be carried out in accordance with the principles of medical ethics only on a voluntary basis. Nevertheless we have learned from numerous witnesses and documentary evidence, that this principle has not always been observed in the various epochs of medical research. This may have to do with the fact that no formal regulation by law has been found for this subject in most countries including Germany.

In Germany the highest government authorities held the opinion during the last war, that in times of war, which demands from every citizen the sacrifice of his life, the criminal may be forced to submit in the interest of the state to a medical experiment dangerous to life, since by the fact of his imprisonment the criminal is protected against the dangers of war to a large extent. The defendant Rose unfortunately could not exert influences this attitude. As far as has become known during these proceedings, my client is one of the few physicians, who fought this opinion during the Nazi dictatorship. Not only did he protest against this attitude toward his superiors, but he even repeatedly demanded in large circles before numerous listeners in sharp manner, that these human experiments for the testing of vaccines should be discontinued. May I remind you in this regard that Professor Horing told his friends that he could not understand at all, why professor Rose should be indicted.

For it was Rose, the only one, from whom he himself knew through personal experience that he had had the courage to oppose publicly the human experiments during the reign of Himmler. Rose was the one who then maintained the good old traditions of German physicians.

Not only the Chinese Minister of education Chu Chia-hua spoke for Professor Rose and described him as an honorable man, but from the most various countries statements of research workers and other personalities of public life, were sent to me during this trial only the smallest part of which hag been included in my document books. All these letters show that it would cause the deepest concern if this eminent scientist should be sentenced in this trial as a belated victim of the Nazis.

Would it not be tragic beyond comparison, if this very man should be sentenced by you for just that against which he fought?

THE PRESIDENT: The afternoon session of the Tribunal will hear from counsel for the defendants, Ruff, Romberg and Becker-Freyseng.

DR. WILLE (Counsel for defendant Weltz): Mr. President, I would like to tell you that I just went to the translating department to find out about things. It was considered that the order would be followed that the case of Rose would come after the cases of Romberg and Weltz. Now, this business about the translation is the following: the cases which have been translated are Romberg, but not Ruff and Weltz, but there are some other cases which have not been translated. It is also doubtful if the translation can be completed today or even tomorrow. I may perhaps tell the Tribunal the following cases are ready: Romberg, Pokorny, Beiglboeck and Schaefer. These cases are at your disposal, but the case of Romberg ha.s not been translated nor have the cases of Schaefer, Brock, Hoven, Becker-Freyseng, Nuff and Weltz. These translations will be forthcoming later, but the Tribunal might decide about the order of the cases.

THE PRESIDENT: Well, counsel, what arguments did you state have been fully translated so the Tribunal might have them?

DR. WILLE: Those ready are Romberg, Pokorny, Beiglboeck and Schaefer.

THE PRESIDENT: The Tribunal had been advised that none of those translations were ready. If those translations are ready so the Tribunal may have them on the bench, then this afternoon we will proceed to hear counsel for Pokorny, Beiglboeck and Schaefer. I presume that arguments on behalf of Ruff and Romberg should be presented in sequence if possible. If there is further time available this afternoon, then we will proceed with some other arguments. The translators have all the translations even if they are not ready for the Tribunal. This afternoon we will proceed, if the translations are available, with the arguments for the defendants Beiglboeck and then Pokorny.

THE INTERPRETER: This is the interpreter. The translation of the Beiglboeck plea is not yet completed, perhaps it would be best to put that at the end.

THE PRESIDENT: Very well, we will proceed then with the arguments for Schaefer, Pokorny and Beiglboeck if these translations are ready.

The Tribunal will now be in recess until 1:30 o'clock.

(A recess was taken until 1330 Hours.)