1947-07-17, #6: Doctors' Trial (early afternoon)
Dr. Pelckmann, counsel for defendant Wilhelm Beiglboeck, presents his closing argument
THE PRESIDENT: The Tribunal will now hear from counsel for the defendant Beiglboeck.
I would ask that some German counsel kindly notify Dr. Sauter that his argument on behalf of the defendant Ruff will be called following the argument submitted by Dr. Steinbauer.
DR. PELCKMANN: May I add something else, Mr. President, my colleague Gawlik has asked me to report to the High Tribunal that the time which has not been used up by my plea, he would like to use up himself.
THE PRESIDENT: That is probably true, but the Tribunal does not extend the time saved by one counsel to any other particular counsel.
BY DR. STEINBAUER (for the defendant Beiglboeck):
Mr. President Your Honors Paragraph 5 of the Law for the Protection of Animals of 24 November 1933, Reich Legal Gazette I 987 prohibited interference with or treatment of living animals for purpose of experiments which are connected with considerable pain or damage to them, for the territory of the German Reich in it's entirety.
While thus protecting horses and dogs, cats and rabbits, for reasons of humanity one did not shrink at the same time and at the same place from doing such things on human beings. According to the indictment, human beings were cruelly murdered by the tens of thousands in the extermination camps, and all this was diabolically done in the name and under the cloak of science or misusing a method connected with science. And there was the aggravating circumstance that most of the victims were defenseless people whom political fanaticism or the war had led into the hands of their torturers.
It is therefore not to be wondered at that all these cruelties which in addition have been exploited by propaganda in some countries produced new ways of contempt and indignation and fanned the thoughts of hate and vengeance smoldering below the coals to bright flames!
Under such circumstances it is made very difficult for the judge, who is only human, after all, to arrive at a just judgment. That is where the defense must come in, and where it will be their high moral duty to contribute their share to scrutinize with dispassionate objectivity the subject of this trial, which is so rich in horrors, and to arrest the glance of the eye for the guilt and for the responsibility of each one of the twenty-three defendants. The external circumstances alone entail the great danger that the deep shadows which seem to fall on the one or the other of the defendants will equally darken the whole lot of them.
The Chief of Counsel, however, said in his opening speech:
We cannot be content with proving that these crimes have been committed and that certain people committed them. Our deep responsibility towards all peoples of the earth is to show why and how these things occurred.
As a defense counsel, I profoundly agree with the Chief of Counsel. This trial, with its toil and labor, must not be confined to the mere purpose of punishment, it must also contribute to making such crimes impossible forever and everywhere by exposing their causes and connections. The Chief of Counsel, however, sees the cause in National Socialism alone, the criminally demented error which has wormed its way into every sphere of German life, and the consequences of which were devastating. Though it is correct that National Socialism magnified certain pathologic degenerations of our Western form of society up to paroxysm, it is not the only cause and the evil springs from much deeper sources.
To expose them all would go far beyond the frame of this trial. we have to be content with drawing a sketch of the situation. We all feel we are treading on swaying ground and are in the midst of a serious crisis of our order of society. Its causes are twofold: spiritual-moral and social economic which overlap, supplement and connect one another. The heirloom of our forebears seems to be used up: skepticism steps into the place of faith, nihilism enters the place of reverence, a certain spiritual vacuum is seemingly bridged by activism, but everything becomes relative and the denial of all metaphysics is called positivism. Man is only a conglomeration of bones, nerves and muscles, and entirely relinquishes his place as a soul-endowed individual. He marries according to selective breeding, he nourishes himself with vitamins and calories, his sensual life is hormone content, and his ethics is psychoanalyzed. The masses with their lack of judgment and their intrusion step into his place and show their preference for the super-dimensional. Everything becomes unique and great! The economic consequences are proletarianization and mechanization. But human dignity and real freedom step into the background. Technique celebrates triumphs, but therein lies the danger.
And science? It also celebrates triumphs. Natural science has reached undreamt of heights. Man tears asunder the veils of nature, penetrates into the stratosphere, smashes the atoms, creates nitrogen out of the air and uses it to fertilize the soil, and synthetically produces fuel, gold, and jewels. Aye, the science of our time has become void of poesie and void of soul.
It has offered but little resistance to its subjection to politics, and the Austrian Wilhelm Roepke, who lectures at the University of Geneva, is justified to quote from Rabelais in his book "The Social Crisis of our Time":
Une science sans conscience n'est que ruine de l'ame.
The German people, after so many years of suffering and a long way of the end of its trials, refutes the cruelties as set forth in the indictment and speaks with Montaigne:
Je hais cruellement la cruaute!
"I cruelly hate cruelty!" Therefore it would understand if the mouth of the victors would pronounce a severe judgment also in this trial, but it demands that the millennium-old commandments of the Decalogue should also elsewhere be valued more highly than the biologism of our present day. For, while talking of peace, the scientists of the world are mobilized to create newer and more effective weapons, millions of Germans expelled from their native soil err hither and thither, hungry and cold, whilst woman and children who were frozen to death were carried out of the unheated refugee trains from the East, and millions of prisoners of war suffer a fate which is one single outcry of violated human dignity.—
All this had certainly to be contributed to the question put by the Chief of Counsel.
Before I go into the details of the charges against my client Dr. Beiglboeck, I would like to talk shortly about two problems which seem to me important for the judgment.
The legal basis of the indictment, and
the question of the medical-ethical basis of this trial, or, in short, the relationship: Physician and research-worker.
But one can go a step further and determine whether the Control Council law as a whole can form a basis for the indictment. When the law was published it aroused a lively discussion, and I remember that the American chief prosecutor in the IMT trial, Justice Jackson, severely criticized the law.
For Control Council Law No. 10 is a law of the occupying powers and goes back to international law. The Prosecution even refers to this law in this trial, when they accuse the defendants in Count 10 of violations of international agreements, especially the Hague Convention of 1907 and the Convention on the Treatment of Prisoners of War (Geneva 1929). With respect to the justification of the Control Council in issuing this law, it has been pointed out that through the unconditional surrender and the termination of the Reich government, the rights of sovereignty were transferred to the occupying powers. (Kelsen) Others refer to the French principle: Ou est le drapeau, est France, that is, the occupying power brings its own law into the occupied territory.
On the other side, it can be said, that even in case of an unconditional surrender the vanquished does not lose all rights. On the contrary, one reason for surrendering unconditionally may be that even in that case the standards remain which the civilized peoples of the earth have established to regulate international relations, such as those on the treatment of prisoners of war, protection of private property, etc.
This to refer to a particular case, also results from the Rules of Land Warfare of the United States of America. The German laws offer sufficient means and ways of punishing war crimes and crimes against humanity committed.
It contradicts this legal regulation to create new laws, without military necessity and about acts alien to the laws of the country.
Furthermore, it is impossible to return to acts and deeds of the past. In Proclamation No. 3 of 20 October 1945 of the occupying powers about the principles of reconstructing justice in Germany, it is expressly stated in II, paragraph 2, "Punishable responsibility only exists for acts declared punishable by law." This is, therefore, a solemn proclamation of the principle nulla poena sine lege.
In addition to that, the legal concept of conspiracy is entirely alien to our continental legal system. It is of American origin and originated from the fight against gangsterism.
But there is still some more to it: my client had nothing to do with the planning of a conspiracy, not even according to the indictment. Perhaps one might allege that by carrying it out he became an accessory later on and took a consenting part in it. Now Beiglboeck was a medical officer in the rank of lieutenant. Well, you can't call a soldier who carries out a military order of his superior a conspirator, if he remained at the place accorded to his rank. He did not make any plans with his superiors, but he only did within the framework of military regulations what his rank demanded of him. His activity during the war was governed by regulations from above which were independent of his own will. This fact alone speaks against the assumption of a conspiracy. What may be of interest to us from a penal-legal point of view is the question where are the limits which call a halt to the military power of command.
And thus I arrive at the second important legal question of this trial, as far as it concerns my client on the question of "higher order" I submitted proof that the defendant, Dr. Beiglboeck, has carried out the experiments against his will by order of his military superiors and as a soldier, and in my opening speech I referred to the judgment of the International Military Tribunal in Nuernberg, which created a precedent in this respect.
In this present case, however, this question is of such decisive importance that it is absolutely necessary to discuss it once again in detail. To arrive at a correct solution we have to inquire how this question is regulated in the Military penal codes of important civilized countries. Since the defendant was a member of the German armed forces, let us start with German law. The problem is regulated in the German Military Code of 10 October 1940, Reich Legal Gazette I, p. 1347, Par. 47. Heading Par. 47 is the principle:
If by the execution of an official order within the frame of official competence a penal law is violated, the commanding superior is alone to be held responsible.
If we take a look at the laws of other countries, we have first of all Art. 114 of the Code penal which says that a civil servant is excused if he acts by orders of his superior within the frame of his competence, where he is in duty bound to obey within the hierarchical system. Further let me refer to Art. 122 of the Italian Military Penal Code, to Art. 30 of the Swiss Military Penal Code, and to No. 11 of the 3rd Chapter of the British Handbook of Military Law.
Since the defendant is on trial before American judges, we would like to make an inquiry which point of view the American Law takes with regard to this question.
The official "Military Law and Precedents" by Colonel William Winthrop, Washington, Government Printing Office 1920, 2nd edition, says the following on page 296:
Though obedience of subordinates is the basic principle of military service, it is till required that only a lawful command should be obeyed. Should the subordinate, however, be required to judge whether or not an order given by his superior is lawful, it would if adopted as a general principle, in itself overthrow all military discipline.
Exceptions are only cases of obvious violations of law, which, however can occur only seldom. Should the subordinate suppose that the order was lawful and authorized and consequently obey it, he can expect to be justified before a court-martial.
Further Oppenheim International Law (London 1935) Vol II, p. 453 and further: Ernst J. Cohn "The Problem of War Crimes today" in Transactions of the Grotius Society Vol. 26 (1941) pp. 125, 144.
Therefore, we say that in the interest of the striking power of the armies unconditional duty of obedience is the main rule is all military laws and only in very few exceptional cases can we depart from it. In addition to that we have to consider the quite unique conditions which the dictatorship in the Third Reich created during the war. It is evident from the documents submitted by the Prosecution that, next to Hitler, Himmler was the most powerful man in the Third Reich particularly during the last years of the war, and exercised unlimited mastery over life and death. Concerning experiments on human beings, he declared expressly that people who refused to carry out such experiments are "traitors to King and Country".
Whoever has been during the dark years in silence in the greater German Reich of Adolf Hitler, the landmarks of which were barracks, wooden huts, concentration camps and slaughter houses for humans, whoever has been within Heinrich Himmler's sphere of power, whoever went through the prisons and the interrogations of the Gestapo, whoever was frightened when his doorbell rings at an unusual hour, only he can full grasp what it means to offer resistance to such an expressly emphasized will of Heinrich Himmler.
In agreement with the Charter of August 1942, Article 2, 4(b) of Control Council Law No. 10:
The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.
Already in my opening speech I referred to the judgment of the International Military Tribunal with reference thereto. It means that the law intends to say: The mere excuse with an order is insufficient; it has, however, to be considered as regards the measure of punishment, whether or not somebody commits a crime on his own initiative or receive an order to that effect. Responsibility would be the greater, the higher one stands on the rungs of the ladder of the hierarchy of the State. The soldier who is ordered to take part in a firing squad will hardly be held responsible for the sentence of the court martial. Unlike par 52 of the Reich Penal Code or Par. 2 of the Austrian Penal Law, this passage of Art. II, 4(b), does not exclude the general extenuating and mitigating circumstances. It will, however be decisive whether or not somebody blindly obeyed the order or tried to evade it with all his power. For this reason the American Court in Dachau acquitted members of the guard of the concentration camp who volunteered for front-line service in order to get rid of an infamous job.
Professor Donnedieu de Favre, one of the main trials of this law, says:
If you act this way then in the sense of individualism, the presentation of the International Laws, it is charged with incrimination to point out the discipline which is necessary for the State. Such laws should only be used with precaution.
If nowadays, in the midst of peace one would say "Beiglboeck should have shot himself rather than going into a concentration camp and making sea water experiments" then this is a very cheap banality. It was Himmler who reigned in 1944 and apart from personal prosecution there was also the so-called next of kin responsibility. Beiglboeck didn't only have the responsibility for himself alone but also for his wife and children.
Here I can only repeat what the American Judge Musmanno said in his dissenting vote in the trial of Field Marshal Milch (page 96):
It never was our intention and it never was suggested that he (Milch) should have chosen a way which might have ended with the loss of his life.
The Prosecution alleges the commission of war crimes by the defendant. Though this question is of no importance to my client outside the scope of conspiracy, because war crimes can only be committed on nationals of the Allied nations, I would still like, in principle, to draw a short sketch of the problem.
The law of nations is a legal system between states up to the present day. It serves the balancing of interests in international relationships. Violations of the law of nations can only be committed by states towards other states.
Finally, the indictment speaks of crimes against humanity. The charter and the judgment of the International Tribunal confine these crimes to the period of the war and to their connection with the aggressive war, and in this point Control Council Law. No 10 obviously transgresses its own basis and powers. Control Council Law No. 10 states in its preamble:
In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto — in order to establish a uniform legal basis in Germany —
Serious offenses against human dignity particularly cruelties and oppressions which cause general indignation and are usually organized from above according to plan and in great numbers, can therefore be regarded as crimes against humanity.
They can be committed both in war and in peace. It is however, questionable, who and which law is applicable to punish this offense in each individual case. According to the judgment of the International Military Tribunal in Nurnberg, the application of Control Council Law No. 10 seems to be excluded.
If we return to the experiments indicted and consider what is said above we have out of sheer respect for ourselves to exclude those activities, the aim of which was, as the prosecution alleges, not to cure but the extermination of human life. But the great majority of the experiments were evidently intended — this can't be seriously denied — to find new ways to cure diseases which hitherto had been a pertinacious scourge of mankind. The success connected with the experiments did not only bring a chance of recovery to the individual patient, but also meant a step forward in medical art and therefore a service to humanity, and therefore, an act of humanity. By the enumeration of a long series of experiments of the same nature the defense has proved that the Allies themselves were busy with the same problems. He who carefully followed the trial will therefore state the fact that the point of gravity has been shifted from the experiments themselves to the question of the execution and particularly to the kind of experimental subjects. Therefore, the object of experiments on human beings steps into the foreground as the most important criterion for the judgment according to criminal law. If we therefore inquire whether or not these are crimes against humanity, we have to answer a further question, leaving out for the time being, narrower medically ethical points of view; how far is it legally decisive whether or not the experimental subjects are volunteers? Volunteer means to commit or to omit an act according to one's own will. The decision is up to the individual as an emanation of his freedom.
As long as mankind can remember, freedom was the goal of human hope, longing and desire, sometimes also a goal of human planning and activity.
But somewhere even freedom must have its limits. Emilion Bonaudi of the University of Perugia says in his book:
Of the limits of the individual freedom. More than all it cannot be doubted that the limitations of individual liberty must be determined by the reasons of the society.
It may be a democratic or an authoritarian state, the freedom of the individual finds its limits within the sphere of power of the state.
These limits will be drawn wider or narrower as the system of the state may be. Just now the commission for human rights of the United Nations is in session presided over by Mrs. Eleanor Roosevelt. It is charged with forging the rights of man into the form of a law, which is to be accepted and ratified by all member states. The World Code is not only to define the rights of the individual, but also to limit the power of the state over the individual. What conclusion can we draw from that? In general, we have to refuse experiments on human subjects who are not volunteers, particularly on prisoners of war, the latter if only it goes counter to the clear standards of recognized international law. And still we will be permitted to discuss whether or not there are exceptions to this fundamental rule. The state which limits the freedom of the individual in order to make an orderly communal life possible has moreover the task of protecting the freedom of the individual. If this state should, however, find itself in a state of emergency, if it fights in a total war until the complete exhaustion of man and material for its very existence, then the limits of its power must be extended and in some cases different measures have to be applied than in peace. Before me I have tragic report: "Mission in the Fire of the Atom Bomb". And still the United States went this way in order to shorten the war considerably and prevent their own citizens from indescribable suffering. Now, I have submitted evidence that in the case of my client the experimental subjects were volunteers. The prosecution alleges in principle, that people can't volunteer in a concentration camp because the people were deprived of their liberty and were no longer able to freely determine their own will. But this is incorrect. For then it would not be permissible to carry out the numerous experiments which were mentioned by other defense counsels, in American penitentiaries and mental institutions without constituting crimes against humanity. There, too, the experiment subjects were not at liberty, in spite of volunteering.
The surroundings will always have a great influence on every determination of will and motives of the most heterogeneous nature (promise of freedom, pardon, improvement of food, etc.) will play a very important role.
I want to demonstrate this to a Military Tribunal by means of an example from military life. A Company Commander is given the order to take an enemy trench with an assault squadron. Since nobody volunteers for this duty, he chooses ten men. A younger man asks to be taken in the place of a selected married comrade. He is accepted. The entire assault squadron is killed. Here we have similar conditions. None of the soldiers were volunteers. Each one of them was under the compulsion of the permanent life danger in war, just even within this sphere of freedom of choice an act of voluntariness was possible.
As in count 15 of the indictment also the national criminal laws of those countries in which such crimes against humanity were committed are referred to, I shall at the end of my arguments briefly define the position of German criminal law applicable also for the Austrian Beiglboeck in his capacity of a Wehrmacht member, with regard to the question of experiments. Since no deaths resulted from the experiments, the laws concerning murder and manslaughter naturally are eliminated, and we are only concerned with the laws concerning bodily injury.
Paragraphs 223 and 229 of the German criminal code contain the laws to be consulted in connection with this case.
The scientific purpose is considered as being the justification for the experiments, in order to exclude the unlawfulness of bodily injury. In this connection, I quote the legal concept: If the state recognizes and promotes the scientific purpose, then all the necessary and appropriate means for its achievement are covered as far as the criminal law is concerned. With regard to this point, von Liszt is of the opinion that only the medical profession can establish what means are need for the promotion of medical science. Summarizing, it can be said that experiments conducted in accordance with the rules of the medical profession and with the consent of the subject do not violate the here applicable criminal law. I think I sufficiently dealt with the legal questions that are important for this trial, as far as this was possible considering the short space of time, and now turn to another point, namely, the question: Doctor and research worker.
Years ago, when times were better, I strolled through Hellas and stood on the ruins of Epidauros. There, in the town of Asklepios, the priest exercised the medical profession, and the most important factor for healing a sick man was his belief in a higher power. Our present time, lacing these gods, has removed the priest's sash from the physician. The medical art, however, remained a sacred office and is full of responsibility.
Schoenbauer very justly says in his paper "The Medical Vienna":
Who chooses the medical profession has taken a sacred office and has put his force, his health, and even his life at the disposal of the sick, in order to recognize their diseases, to cure and to help them.
The priest-doctors are now being confronted in some medical papers with scientists or medical research workers. Also in this trial, the attempt was made to construct a difference between physician and scientist to the disadvantage of the defendants. Within the framework of the defense, I briefly want to define my attitude in this respect. It is possible to evaluate correctly the proceedings only if one is acquainted with the general attitude of the medical world with regard to certain professional questions, if one particularly takes into consideration the importance of human experiments for the scientific research and, thus, for the practical medicine and if, finally, one does not forget the spiritual currents of that time and the economic and political conditions.
The problem of all this is not too difficult. However, it is not so simply as to conjure — with a pious raising of the eyelids — the ghost of old Hippocrates and to quote one sentence from the Corpus Hippocraticum as the Alpha and Omega of medical ethics. Let us recall how helpless Hippocrates was, when the plague killed hundreds and hundreds of his Attic fellow-citizens. At that time already the duty of a doctor, namely to treat the individual that turned to him for help, became the noble duty of a helper of the community.
Very justly says Schumacher, in his thesis, "About the Medical Spirit", Abendlandreihe, Vol. 2, published by Johann Wilh, Naumann, Ausgburg 1946, page 58:
In accordance with Hippocrates' ideal, the doctor's attention is directed to the welfare of the individual as well as to the welfare of the state. To place the welfare of the individual above the welfare of the community would have been just as contradictory to his sense for order as the opposite.
If one confronts the doctor with the scientist who, with the test tube in his laboratory, with the syringe or the surgical knife in his hand, walks over animal and human corpses, in order to satisfy fanatically scientific instinct, we very decidedly object to such a scientist. We also found this type in the documents of this trial in the person of Dr. Rascher, whose name casts a dark shadow over the material of the trial. Dr. Leibbrandt, the protector of medical ethics, would therefore have rendered a good service to German science if he, in his capacity as a psychiatrist, has pointed out that Rascher, this sadist and psychopath had nothing whatsoever to do with real science.
It is my duty as a defense counsel to emphasize energetically that it is not permissible to construct from local coincidences any connections between my client and Rascher and his system.
The scientific research worker sees his task in the discovery of the unknown, in order to equip the doctor with a new weapon in his fight for the human life. I briefly want to demonstrate with two examples why the modern medical profession cannot renounce the scientific research work that was impossible without great efforts and sacrifices:
Giving a brief description of the development of modern surgery;
Mentioning the school to which the defendant Beiglboeck belonged as a pupil and a teacher.
I do not give this second example in order to glorify my country, but because the particular influence of its teachers is decisive for the spiritual standard of the personality.
At the beginning of modern surgery stands the great figure of English surgery, Joseph Lister, whose great idea it was that the surgeon did not have to fight the inflammation of the wound, but to prevent its beginning caused by germs entering from outside.
Thanks to bacteriology, the anti-sepsis was changed into sepsis.
Over the entrance gate of the General Hospital in Vienna we read the words:
Saluti et solatio aegrorum — Dedicated to the health and the consolation of the sick.
These words not only demand highest accomplishment of the doctors's duties, but are the motive for the most successful work in the large field of medical research. Theory and practice joined in order to become a piece of living humanity. I would go beyond the limits of my task if I mentioned all the names that spread the glory of the Vienna University all over the world. But their penetration into the world of the unknown was always a hazardous enterprise, which demanded courage and sacrifice.
I want to quote the words of one of the great doctors, Professor Wagner Jauregge, who says in his book "Fever and Infection Therapy":
The vaccination against malaria was certainly a risk, the outcome of which could not be foreseen. It was dangerous for the patient himself and this to a much higher degree than the treatment with tuberculin and other vaccines, and it also was a danger for the surroundings and even for the community.
And, on page 136:
Three patients died after having been vaccinated with blood being infected with malaria tropica and not with malaria tertiana. The tragic outcome of this experiment was discouraging, and only a year later could the author decide himself to proceed with the malaria vaccinations.
Nobody talks today of these victims, but Wagner Jauregge's revolutionary discovery is known and adopted in the whole world and has become the common property of all peoples for the benefit of suffering mankind.
These doctors who knew that the fight against disease and death was a thorny path, were more than all ready to sacrifice their own lives.
The real scientist and the real doctor, therefore, do not oppose each other. However, the scientist must not forget that nature is the expression of the divine will and that only this cognition can save him from the "hubris", the boundlessness which for the Greek tragedians was the greatest vice of mankind.
More than all, the words of the greatest German physician, Theophrastus Bombastus von Hohenheim, called Paracelsus, must be applied for both scientist and doctor:
The doctor grows with his heart, he come from God and is enlightened by Nature — the best of all the drugs is Love.
My learned colleagues have compiled a long list of documents on human experiments especially from the Western democracies. It would be unjust, however, to conceal the enormous benefit of the human experiment. The fact that Paul Ehrlich dared to release his drug "Salvassan" which had not yet been sufficiently tested, saved thousands from the dangerous consequences of one of the worst epidemics. The fact that Strong took the responsibility upon himself to carry out the probably very dangerous experiment with plague bacilli made it possible to vaccinate thousands of persons and to save them from the almost certain death.
The fact that Strong was in a position to prove that Beri-beri was a disease caused by a deficiency, and that Goldberger proved the same for pellagra, made it possible to fight this deficiency and to liberate entire countries from one of their worst diseases.
With regard to the criminal law, however, and the judgment of crimes against humanity, it is the decisive result that also in other countries, under the there generally prevailing medical and ethical convictions, doctors carried out similar or the same experiments for the benefit of scientific research or in consideration of a critical condition of their country.
If I further said that the surroundings had an influence on the doctor's position, I did not think of the second determining factor of our individuality, not of the material influence on the organism that might modify or mitigate the influence of the actual conditions at that time upon the decisions of a physician.
Concentration camp, militarism and peoples' court. Three important columns of the Third Reich. They have collapsed. They are not to be forgotten, however, when examining the guilt of the individual. Every German had to fear them in one form or another. And then came the war. War was once called "the steel bath of the peoples". Heraklit called it "the father of all things". I can only repeat the judgment of the IMT that "war is the evil itself". This is true to the highest degree for the last war. It was a total, a terrible war. Even the medical science on both sides had to assist warfare. I have before me the index of the best known scientific English periodicals from the war period "Lancet" and "Nature". Now, after the war, General T.I. Betts of the United States War Department and Professor W.T. Sinsteat of the British Supply Office have declared that the captured German scientific accomplishments during the war were of the greatest use for the economic progress of British and American industry. Even the terrible freezing experiments of Dr. Rascher proved to be of greatest use for America in the war against Japan. (See Document No. 31, Becker-Freyseng.) And what about us soldiers? We stood in the air-raid shelters, the Socialist beside the Party member. We did not complain. We saw villages go up in flames, innocent women and children become the victims of air raids. We saw our country, the Fatherland, in distress, and we believed, even if we hated Hitler and his followers like the plague, we had to fulfill our duty to our country to the bitter end. One cannot tell these things, they have to be experienced. In such times a doctor is placed against his will between Scylla and Charybdis, between his concept of his profession and his duty as a soldier. It is easy today to say with pathos from an academic chair: "numquam nocere!" Now, this man does not say:
I was a member of the resistance. I was trying day in and day out to help persons who were racially and politically persecuted.
He says:
Then, like everyone else, I merely did my duty.
Abraham Lincoln, one of the greatest Americans, said in 1862, in a speech before the American Congress:
The dogmas of quiet times ill sort with our stormy present. In the fact of new events we must think and act in a new way.
With this I intend to conclude my statements about medical ethics, and repeat the words which Liek wrote at the end of his book, "The Doctor and His Mission":
If we want to abolish undesirable conditions in medicine, we must follow our conscience — to help and to heal, that is, today as always, the mission of the doctor.
Now to the experiments themselves in brief:
The Chief Prosecutor let the weight of the facts speak for themselves in other experiments, but because this is lacking in the seawater case, he resorted to poetry! He led us to the realm of Greek mythology and reminded us of Tantalus who was punished with eternal thirst and hunger because he served his son to the gods as food. I will follow the example of Mr. Telford Taylor and go one step further and lead you, Your Honors, to Hell.
The prosecution does admit one point however. The purpose of the seawater experiments was not meant to be methods of killing and destruction, but had a very clear connection with rescue problems. The statement of the prosecution, however, that no tangible progress for modern medicine had been achieved must be denied most emphatically. As an answer to this I would like to suggest to the prosecution to read two books which are bound to disprove the basis of such a statement. The books in question are two English books; the English, the greatest seafaring nation quite naturally considered his nautical problem of paramount importance. Shipwreck — survivors, a medical study by Macdonald Critschley (London, Churchill Ltd., 1943). He maintains that the seafaring tradition is built upon the sacrifices and sufferings of generations of sailors, explorers and daring merchantmen. This compels the medical profession to put its knowledge at the disposal of the Navy. He continues to describe the sensation of thirst and the efforts to conquer the lack of water and finally is forced to admit that no solution has yet been found for this problem. The second book is James Hanley's "Ocean". He narrates the odyssey of five shipwrecked men. Written in the middle of the last war, this book is an epic of comradeship and humanity and at the same time a dramatic description of the sufferings of helpless drifting survivors of a shipwreck. As part of my defense documents I submitted two scientific papers by Parker, Doc. No. 18, and Ladell, Doc. No. 21, dealing with seawater experiments and, further, Doc. No. 19, depicting a drama on the high seas, underlining the necessity of such research. They differ from other experiments carried out by the defendants by the fact that the physician had them constantly under his control and could stop them at any time. A glass of water ended the experiment. Helmut Marx says on this subject that for quenching thirst salt solutions are superior to pure water, since the time it remains in the body is greater and the balancing effect on the intermediary disturbances is more pronounced. (The Water Balance of the Healthy and Sick Person. Springer Publishing House). The injections at the end of individual experiments were, therefore, not tortures, but were medically well founded. The seawater experiments are furthermore basically different in that, in contrast, for example, to the bacteriological experiments, no diseases are caused in a healthy person with untested drugs or, as in the case of sterilization, the healthy person is rendered permanently sterile.
Therefore, I can, certainly turn to the question whether the execution of these justified experiments can be considered a war crime or a crime against humanity. In view of the consolidation of evidence which I have submitted to the court, I can present its result here in the form of a few maxims.
Its execution lay in the hands of man, well suited for this task by reason of previous experience and specialization in the field. The most famous German internist Eppinger, calls him his most able. The director of the experiment had a number of well trained aids at his disposal and all necessary therapeutical implements were at hand. This experiment could not have been carried out differently in the best American Hospital. The actual beginning of the experiment was preceded by intensive animal experiments and an experiment on himself by the director. The treatment, housing and nourishment of the experimental persons were good. They volunteered and were informed about aim and consequences of the experiment by the director. If someone were to emphasize again at this point that volunteers exist in allied prisons but not in German concentration camps, then I do not want to argue about that. As defense counsel it suffices for me to point out that Beiglboeck subjectively had definitely and not carelessly assumed that he was dealing with volunteers. A judge of a criminal court does not judge the action, he judges the man and therefore he can not simply pass up the so-called inner facts of the case. Nor was there any definite proof submitted that allied nationals were used in the experiments.
The experimental persons were not selected to persecute them for racial or political reasons, they wore the black chevron of the anti-social prisoner. A study of the American immigration and marital laws have taught me that especially in America, the concept of the "Anti-social element" is well understood. — No death cases and no permanent impairment of health resulted from the sea-water experiment. They were certainly hard and troublesome and constituted an heroic act on the part of the experimental persons, but they were not tortures and cruelties, they did not violate human dignity and thus, they are not crimes against humanity. This is seen unequivocally from the statements of Dr. Lesse, Massion, Pillwein and Mettbach and from the sworn testimony of the defendant as witness in his own behalf. These testimony disprove completely the prosecution witnesses Vieweg, Vorlicek, Bauer and Tschofenig. It is now the task of the court to weigh these testimonies against each other and to examine their credibility.
Apart from the many previous convictions of the old jail-bird Vieweg, we must not forget in the case of the other prosecution witnesses, what the star witness of the prosecution in concentration camp questions, Kogon, has written about feeling of revenge. The most important circumstance, however, is the fact that all these prosecution witness moved only at the fringe of the action itself, that they were not absolute eye-witnesses, but depended on rumors and legends as described to us vividly by the Czech physician Dr. Horn as a phenomenon of mass psychology. In the case of the sea-water experiments I was able to find the original data sheets, and thus make an expert investigation possible. This investigation has now been carried out by the internationally recognized authority, the expert Prof. Dr. Voelhard, and has confirmed the statements of the defendant are unequivocally. Even the prosecution's expert, Prof. Ivy, had to concede many decisive points to the defense.
This concludes my statements about the experiments. In conclusion I want to point out once more that the defendant had no personal interest whatever in the experiments and that he carried them out against his will as a military order which he had to obey.
Your great president, Franklin Dr. Roosevelt said on the 23rd of Feb. 1942:
The Atlantic Charter does not only apply to those parts of the world which touch upon the Atlantic ocean but to the whole world; the aims are disarming the aggressor, self determination for nations and peoples, and the four freedoms: Freedom of Speech, Freedom of Religion, Freedom from want and Freedom from fear.
Your soldiers have carried the Stars and Stripes across the ocean to put these words of Roosevelt into action. If someone says to you now: "I have lived in fear and under compulsion." Would it not be tragic if you especially, as liberators from fear, would execute here what Himmler or Hitler have not done? If I quoted the devil's servant Mephistophiles in the case of Dr. Rascher, then you shall quote Faust in Beiglboeck's case and say:
Whoever strives to make an effort him we can save.
For objective and subjective reasons, therefore, you will have to acquit my clients.
THE PRESIDENT: The Tribunal will now be in recess for a few moments.
(A recess was taken)