1947-07-17, #8: Doctors' Trial (late afternoon)
Dr. Vorwerk, counsel for the defendant Hans Wolfgang Romberg, presents his closing argument
THE MARSHAL: Persons in the courtroom will please find their seats.
The Tribunal is again in session.
THE PRESIDENT: We will hear from counsel for the defendant Romberg.
DR. VORWERK: Mr. President, members of the Tribunal:
When the prosecution demands, in the German transcript page 54 (English 12), that the Court give its verdict in the name of humanity, it thereby demands a verdict in the name of the community of the world, of a pipe dream rather than an idea even close to realization.
When the prosecution, on page 57 of the German transcript (English 14), considers the completion of this trial as necessary for all people, this trial should, in their opinion, contribute to the obligation of the peoples of the world to recognize the standards used at this trial, an obligation, that is, which has so far not been recognized generally as legally binding and does not even actually exist.
The prosecution is of the opinion that the true purpose of this trial goes beyond the mere exacting of vengeance on the few. It also holds my client, the defendant Dr. Romberg, responsible for murders, tortures, and other atrocities which he is said to have committed under the guise of medical science.
If this trial is to derive the punishment of doctors from the moral concepts of the civilized world, it must definitely be stated that moral values themselves never constitute a basis for demanding punishment. Max Scheler, in his works "Formalism in Ethics" and "The Ethics of Material Values", has convincingly proven the correctness of this opinion.
Natural law does not even demand the punishment of a person who makes no use of his natural right to resist laws which violate the moral values of justice, loyalty, reliability, and others.
The punishment of such action is merely a measure of expediency, for otherwise the principle "nulla poena sine lege" would logically be incompatible with natural law itself. This principle demands that the legislator not create a new law and thus make retroactively punishable an immoral action which, at the time of the action, violates no legal standards.
Let me in this connection quote a word of the wise Koenigsberger philosopher Kant:
Nothing but good will is conceivable in this world, or even outside of it, which can be considered good without any reservation. Good will is not only what it effects or achieves. It is not its usefulness in achieving some predetermined purpose, but it is the willingness which is good in itself.
The prosecution charges Romberg with violation, from 1939 to 1945, of the Control Council Law No. 10, which was not promulgated until 20 December 1945. The Control Council Law No. 10 lists criminal acts against international law, determines the responsibility of single individuals, and establishes the competence of this military tribunal.
The question whether the Tribunal is competent as an American military tribunal to pass judgment on offenses committed before the occupation of Germany shall not be considered idle. The fact is that the Tribunal has constituted itself and must make a decision in accordance with Ordinance No. 7, Control Council Law No. 10, the London Agreement of 8 August 1945, and the Executive Order of the President of the United States through which the judges were appointed. We must, however, sharply distinguish the procedural question and the question on which material criminal law is to be applied in arriving at a decision. The proclamation of Ordinance No. 7 shows in itself that even American procedure is not considered applicable without a legislative act of the occupying power.
My written plea or closing brief, which I have submitted and which can be read here only in parts and in its basic arguments because of lack of time, is then followed by a short discussion of Control Council Law No. 10, and especially an answer to the charge of conspiracy. In this connection I refer to the argument presented by the defense in the plenary session of Military Tribunals I, II, III, IV, and V on 9 July 1947.
Also in view of the fact that a decision of this Tribunal has been rendered on 14 July 1947, I do not have to deal with this any further.
In addition, I have considered the preparation, execution, and result of the Ruff-Romberg experiments, to which I want to refer here. But I would also like to make a brief statement about the position of the prosecution expert Professor Ivy in regard to slow-sinking experiments.
The question now arises whether the danger of the slow-sinking experiments emphasized by Professor Ivy really was so great that these slow-sinking experiments, in view of the evident unreliability of the calculations and animal experiments, are to be considered medically not responsible. Where does Professor Ivy see the special danger in these slow-sinking experiments? Professor Ivy considers it possible that in these experiments anoxia lasting for almost ten minutes could cause damage to the brain cells. He also considers it possible that the damage to the brain cells caused by the slow-sinking experiments were not detected because no intelligence tests were given in which a decrease in the learning capacity could have been noted (page 9145 of the German, page 9036 of the English, and pages 9186-9187 of the German, page 9080 of the English minutes).
The following questions are to be clarified in regard to this testimony:
Is there any damage to brain cells when anoxia lasts less than ten minutes?
When such damage appears under longer anoxia, is it then localized in the cortex cerebri?
When the damage is not localized in the cortex cerebri, but in other parts of the brain, how does such damage manifest itself, and by what methods can it be detected?
Is it possible to conduct an examination of the learning capacity by an intelligence test? and
How great is the degree of probability for such an injury?
Is it so great as to define the execution of similar experiments as being irresponsible?
These questions were answered by Professor Ivy as follows:
To Question No. 1: Professor Ivy answered the question as to whether he knew a case of demonstrable brain injury incurred through temporary anoxia, "No" (page 9308 of the German and 9201 of the English transcript), and then he continues on page 9309 of the German and 9201 of the English transcript:
Two factors have to be taken into consideration here: First the degree of anoxia and then the time. These two factors must be taken into consideration, and as you say in your own report you were dealing with the extreme limits that, in your opinion, were still on the harmless side of the danger line.
To Question No. 2: Dr. Ivy, when asked where, after long lasting anoxia, the brain injuries occurred, affirmed that in most of the cases such injuries appeared in the main ganglia and especially in the area of the corpus striatum, that is, not in the pericranium (page 9309 of the German and 9202 of the English transcript).
To Question No. 3: Dr. Ivy answers and affirms the corresponding question that injuries of this kind generally are connected with disturbances known as Parkinsonianism. Disturbances of this kind may also appear later, after 5-10 days, and then even lead to death. In any event, however, these disturbances cannot be ascertained through intelligence tests (page 9310 of the German, page 9202 of the English record).
To Question No. 4: With regard to this point Dr. Ivy stated that he had knowledge of papers on the registration of injuries of brain cells through anoxia by way of testing the learning capacity in animal experiments (page 9307 of the German, page 9200 of the English record). According to the statements of Professor Ivy no experiences in connection with the reduction of the learning capacity of human beings, nor the registration by means of intelligence tests, are available.
To Question No. 5: To Judge Sebring's question (page 9217 of the German, page 9111 of the English transcript):
Is in the Ruff-Romberg report mention made of experiments of which it can be said with absolute certainty that they resulted in deaths, permanent injury, or great pains for the experimental subjects?
the expert Professor Ivy answered:
No, but you will recall that I said that there was a possibility that the learning capacity of the experimental subject might suffer from the long anoxia of the brain. However, that was not the purpose of the Ruff-Romberg-Rascher experiments.
To the President's question:
Mr. Ivy, is it or is it not your opinion that the experiment of a slow descent from an altitude of 47,500 feet, as executed by the defendants Ruff and Romberg, would probably cause injuries for the experimental subjects?
Professor Ivy gave the following answer:
I said already that possibly the learning capacity might suffer from it, but there is no reason to assume that injuries can be caused.
(Page 9437 of the German and page 9325 of the English transcript).
This is such a low degree of improbability, also confirmed by this severe expert of the prosecution, that no reproach can be made to a scientist if he conducts such experiments, especially when the experimental subjects were warned with regard to the possible risk connected with the experiment.
The discussion of the final reports on the Ruff-Romberg-Rascher experiments, Document No. 402, Exhibit 66, Document Book II of the prosecution, and the questions whether the Ruff-Romberg experiments were painful or dangerous for the lives of the experimental subjects cannot be dealt with in detail now. In this connection I want to refer to my written closing brief.
With regard to the question of voluntary participation of the experimental subjects in the Ruff-Romberg experiments, I refer to the same brief and to the speech of my colleague Dr. Sauter.
I go on with the question, whether criminals can be used as voluntary subjects. The voluntariness of concentration camp inmates was denied by General Taylor who pointed out the terrible living conditions in the concentration camps. In this connection I want to point out that in 1942 the German people and with them Dr. Romberg did not yet know anything about the terrors in the concentration camps, which later became know to the public. Furthermore the terrible conditions as they prevailed later, especially towards the end of the war were only developing in 1942. The experimental subjects used in the Ruff-Romberg experiments were further German criminals (this point was shown). In other words, these experimental subjects were not prisoners in the sense of the Nazi regime, but persons who in any government would have been detained in prisons. The fact, that professional criminals and criminals were transferred to concentration camps is just the point that renders the evidence so difficult. I want to emphasize once more that the fact that the experimental subjects of the Ruff-Romberg experiments were criminal prisoners, who in any event would have been incarcerated and were no victims of the national socialist regime must be taken into consideration.
Besides the fact that the living conditions in a concentration camp in 1942 can not be compared with those prevailing towards the end of the war and as they are know to everybody today, the hardships resulting from these conditions or from any other conditions might be an argument for the voluntariness as well as against it.
If the witness Hielscher was also speaking of the voluntariness under duress and said that the concentration camp inmates seized every opportunity eagerly in order to improve their conditions and if he described this attitude as an objective compulsion, this expression defines more properly the concept of the philosophical freedom of choice that practically never exists in real life.
Even the expert of the Prosecution, Prof. Leibbrand in his partial attitude upheld this point and declared that prisoners could not be considered as volunteers.
There is no doubt that this point of view is obviously wrong, which is proved by the fact that prisoners are considered to be in a position to make commitments that are legally binding. I do not know of any case, in which the legal science failed to recognize such a commitment, because the prisoner in view of his arrest was under duress and therefore was not free to make a decision.
It is up to the state to declare the voluntariness of a prisoner who volunteers for an experiment as sufficient, if the state intends to use prisoners and criminals for experiments. The physician has nothing to do with this question. It is beyond his sphere of influence. He only knows that the rulings recognize that kind of voluntariness and give him the authorization to use these persons as experimental subjects. The physician has the right to be of the opinion that the sentenced criminal has the absolute freedom of choice between both possibilities, either to serve his sentence or to volunteer for an experiment. The prisoner has the same freedom of decision as the patient, who can chose between a dangerous operation, sickness and death. This is particularly the case, if we are concerned with a first experiment on a completely new technique of operation. Never was such a decision considered as being under duress or morally objectionable. The physician is used to this free decision in a situation determined by fate. From his point of view it makes no difference whether he gives a choice to a person who has fallen ill by an accident or by predisposition or to the person who has become a criminal by accident or by predisposition. For a doctor and a scientist voluntariness must be sufficient. The supreme principle in this field could be for the scientist: An experiment is unobjectionable, if the experimental subjects gives his consent, provided that the doctor, when conducting the experiment takes all the necessary precautions.
The problem is made more difficult by the fact that no legislation about experiments on human beings exists and still, experimentation with human beings is an indispensable prerequisite for the further development of medicine, which will be treated in the chapter on the Necessity of Experimentation on Human Beings. Everywhere in this field, certain rules have taken shape which can be considered as the law of common usage and which are quite generally and through silent acknowledgement accepted and recognized in the entire world.
In the course of these proceedings, valuable material has been collected by the defense which demonstrates the law of common usage in cases from the absolutely harmless to the fatal experiment. Without a doubt, this evidence would be suitable to codification of medical law of common usage in regard to experimentation with human beings and to direct legal development in this regard into safe channels. We do not want to examine here whether this would be possible within the framework of an international body such as the Red Cross. Perhaps, in this way, a problem of the future could be solved, a problem whose immensity and tragic nature is clearly seen in the question put to each one of the defendants by the expert of the prosecution, Prof. Dr. Alexander:
Do you think it permissible to kill 5 people, if, by so doing, you can save the lives of 5,000 people?
I refer to Dr. Sauter's statements and wish to skip the next 2 pages of the excerpts. And I continue on page 10.
For the supplying of prisoners as experimental subjects, without doubt the state has to assume the responsibility. As far as this matter is concerned the oath of Hippocrates can certainly not be applied to the physician. There were states which at least at times did not prohibit abortion. In almost all countries the interruption of pre pregnancies is permitted if the health of the mother is at stake, an exception which Hippocrates did not know.
The physician's duty to preserve secrecy, one of the most noble fundamental principles of the medical profession, must be broken by the state if a public interest demands it, e.g., in the fight against contagious diseases, in the system of public insurance, or in the discovery and solution of a crime.
Here belong also the obligation on the part of the person carrying social security to undergo an operation, the sterilization laws, and many others. Apparently the legislator feels no qualms in such cases, because his laws bring the doctor into conflict.
For the doctor war must be the greatest madness of all. While he is fighting with all means of his art to save the life of a sick person, the lives of thousands in the flower of health are destroyed or forever injured. So far as he is able, a doctor most patch up again those who are injured, not so that they can now live in peace, but so that they can return to the front. The doctor does this, though it must run counter to the very meaning of his profession. He grasps the necessity, because the State has ordered him. I bring this forth to show that the State, from various points of view, influences medical ethics. It is evident, that, if the State orders the doctor to do something that is contrary to his ethics, the State must undertake the responsibility for this. If therefore, the State makes experimental subjects available for medical experiments, it bears the responsibility for this fact, which, however, does not relieve the doctor from the duty of carrying out the experiments to the best of his medical ability and with the greatest of care.
Only to this extent is the scientist personally responsible.
There follow now proofs that the experimental subjects used in the Ruff-Romberg experiments were exclusively German criminals.
Now I should like to turn to the question whether the Ruff Romberg experiments in rescue from high altitudes were necessary.
It would appear necessary briefly to scrutinize the problem of human experiments as such.
The development of medical science would have been inconceivable in the history of mankind without the medical experiments. If one reflects that our entire medical knowledge and practice represents the sum total of the experiences that have been collected by natural scientists, healers, and doctors in the course of millennia in an unbroken series of human experiments, from the most harmless to the almost certainly fatal, only then can one calculate the great implications of the problem that confronts this high Tribunal, particularly as regards the effects of its judgment on the future.
The highly developed and difficult technique of modem operations has been acquired by the empiric method, the human experiment. The same is true of our knowledge of the means of combatting the great afflictions of mankind or our knowledge of the maximum doses of a medicine that is also a poison. Human experiments were as necessary for the testing of the remedies provided by the chemical industry, such as salvarsan and penicillin, as they were for the testing of modern physical methods, shortwave, x-ray, and radium therapy.
No one is able even to approximate the number of human experiments or the number of sacrifices that paved the way for medical science to its present pre-eminence. The great afflictions, formerly the scourge of humanity, which annihilated whole populations, have been conquered: the black death, the plague, leprosyx have been all but exterminated. Other great diseases still take their numerous victims. The struggle against cancer, tuberculosis, malaria, and many other diseases is still going on.
In this struggle the method of human experimentation for which deductive thinking provides no sufficiently secure basis, has in modem times come even more prominently to the fore. And indeed, there is no other way. Animal experiments, calculations, deductions by analogy can only help and supplement.
The crucial experiment must be conducted on man. The euphemism "therapy" can not conceal the fact that these are in reality experiments. Witnesses like Professor Leibbrand simply ignored these obvious facts. If every doctor had adhered so strictly to dogma, to the oath of Hippocrates, as Professor Leibbrand asserts he has, then medical science would still be in its Stone Age.
A doctor who stubbornly maintains this point of view and repudiates on ethical grounds any experiment on human beings does not thus solve this problem; he simply puts it on another man's shoulders. Such a doctor is a sort of conscientious objector in medicine, who does as little to solve the problem of human experimentation as the conscientious objector does to banish war from the world. Others, again, have purely personal motives. They do not feel themselves to be robust enough, or for other reasons wish to have nothing to do with such experiments — a clever and convenient way out, which, however, does not do justice to the scientist's obligation to the common weal.
Fortunately for mankind, however, there have been doctors at all times who have seen not only their duty toward the individual but also their duty toward humanity. Have all physicians who have carried out such experiments violated the oath of Hippocrates? Are all the great and famous scientists — Pasteur, Ehrlich, Reed, Grossi, Strong, Calmette — criminals; are they at least doctors who have violated the Oath of Hippocrates, this Oath that the prosecution has placed in the foreground as the moral law guiding this proceedings and that public opinion has consistently used for the moral defamation of all the defendants here?
It remained for Professor Ivy, the prosecution's star witness, shortly before the conclusion of this trial, in evaluating human experiments throughout the world and in according recognition to their ethical value to testify here on the stand that, to be sure, the Oath of Hippocrates had its validity, but was to be applied in its narrowest meaning only to the doctor at the sick bed. Moreover, Moll, in his book on medical ethics that Professor Leibbrand so often quoted, writes the same thing.
Since it is not possible to collect all the necessary data in experiments at the sick bed, in the course of history doctors have carried out experiments in which the pathological condition to be investigated is artificially induced; in part, to ascertain the degree of contagiousness during quarantine; in part, to investigate the pathological conditions in question without the interference of incidental symptoms; in part, to test the development and prophylactic effects of vaccines; and, finally, also in order to investigate pathological conditions in man that under normal circumstances should not appear or cannot be investigated; and here belong, for example, the states of hunger and thirst, the state of being very cold, the effects of great altitudes or great velocities, particularly the effects of acceleration and deceleration, and many other abnormal conditions that are brought about by changes in the normal conditions of life.
Such experiments were, in part, carried out on patients who, without their knowledge or on the assurance that a new method of therapy was being applied, were infected with additional diseases, or on whom new therapeutic methods were tested. These suffering from cancer have been particularly burdened with this, as can be soon from the history of cancer research.
In addition, there were and are doctors who did not turn to the sick bed for their experiments, but who carried out their experiments oh volunteer prisoners, soldiers, and free civilians, who were told what was at issue and who then either, for reward or idealism, made themselves available for experiments. Such a doctor was not bound by the Oath of Hippocrates, which prescribes for the patient, the victim, primum nil nocere; he was doing his duty as doctor and scientist, who is not fighting the battle against disease in the individual patient, but is called upon and obliged to take up the battle against disease as such, and thus is serving humanity as a whole.
It cannot be disputed that these experiments caused sacrifices, sacrifices of people who gave their lives for the peace and welfare of humanity, sacrifices that were endured in order to make the "thousand natural shocks that flesh is heir to", as Hamlet puts it, more tolerable.
I believe that I am not exceeding the limit which is at stake here if I ask the question: Were not all the real or ostensible advances of mankind, of which our age is so proud, bought at the expense of a vast number of sacrifices? I draw your attention to the history of the great discoveries, of seafaring and flying; I draw your attention further to the accomplishments of techniques, the invention of the automobile and Railroad construction, mining, electricity, etc. The history of each such development is a list of victims, and everyone knows that.
So much of the necessity of human experiments per se, which must be basically recognized, a development is not to be broken off suddenly, or the methods of modem science are not suddenly to change from the ground up.
Whether certain rules are to be observed in the execution of human experiments, and if so which rules, will be discussed later. At this point I am interested in the fundamental assertion that experiments on human beings must be permitted because the struggle against human nature forces us to adopt this attitude.
If, in the future, all experimentation on human beings is prohibited, not the doctor, not medical ethics, but only humanity would have to suffer.
Military Tribunal II in its judgment of 16 April 1947 against Erhard Milch took the same attitude by finding the Defendant Milch not guilty on this count of his indictment, although Milch knew that experiments on human beings, the same experiments with which my client is charged, were carried out for the Luftwaffe. Of course, not every experiment on a human being is necessary. But the question of whether such an experiment is necessary can be answered only in the individual case.
In the following, then, the necessity of experiments for "rescue from high altitude" is proved in detail. I refer to the written plea or closing brief which I have handed in. In conclusion I should like to say the following on this chapter:
According to the evidence presented, the result must be stated to be that the Dachau experiments of Dr. Ruff and Dr. Romberg were absolutely necessary experiments.
The necessity of the Ruff/Romberg experiments was not denied by the Prosecution expert Prof. Ivy, who admitted that the same or similar experiments were and are being carried out in the American air force.
The latter fact can be seen from the fact that the Defendant Dr. Ruff, until his arrest, worked for the American air force on the same questions on which he had worked for the DVL. It also results from the fact that almost all leading German aviation medicine experts are at present working in the USA, with the exception of Drs. Ruff, Romberg and Becker-Freyseng, who are under indictment here. Since the USA is at the present time not at war, and since it cannot be assumed that that country is arming itself for another war, we must assume that the necessity of such experiments is not a temporary one, but is absolute, that is, applied to the Ruff/Romberg experiments, that the execution of the experiments for "rescue from high altitudes" was not only necessary because of the fact that Germany was at war, but the solution of this problem was of extreme importance for the further development of aviation in general.
Prof. Ivy, propounded three general principles for experimentation on human beings. These principles, as he testifies on the following page, he submitted, as a representative of the delegates' committee of the American Medical Association to this committee in December 1946, whereupon the committee took the following stand in this matter: I quote:
The committee finds that the experiments which are described in Dr. Ivy's report correspond to the principles of medical ethics of the American Medical Association. These principles consist of three fundamental demands:
There must be voluntary consent of the experimental subjects on whom the experiments are to be carried out.
The degree of danger inherent in each experiment must first be established by animal experimentation.
The experiment must be carried out under responsible medical supervision in an orderly manner.
I should like to state that, after a study of the above evidence and from a knowledge of medical literature, it is obvious that experiments have been carried out which do not conform to these principles.
But even in applying these rules, which were propounded in 1946, it is certain that the Ruff-Romberg experiments, as described above, are quite within the framework of those three rules and have in no way violated medical ethics.
Conclusion
In the closing brief the Rascher experiments are discussed, which have been contrasted to the Ruff/Romberg experiments. It has been proved that Romberg did not take any active part in these experiments and that he personally opposed the Rascher experiments.
Not only is it completely out of the question that Romberg took any active part in the Rascher experiments, but in this case he cannot even be charged with an omission.
Every omission must be based on an "expected action". This expected action must also, however, be a "necessary action". Every necessary action is, of course, simultaneously an expected action, but not every expected action is simultaneously a necessary action.
The punishability of an omission depends on two prerequisites whether it is to be punished depends on a duty to take action and on whether it can be proved that this action would have averted the forbidden consequence. The duty to take action can arise from a legal maxim; in particular, it must be a legal duty to avert a consequence, the proved purpose of which it is to justify criminal liability for the consequence. On the other hand, a mere moral duty does not justify any criminal liability. A duty to act could further arise as the result of the assumption of a special duty, perhaps the assumption of duties on the basis of a legal transaction or a contract. This possibility too is quite out of the question in this case, and the Prosecution has never advanced any facts which might admit of such an assumption.
A further basis for a duty to act would be possible perhaps from the law of Common usage in the sense of a duty based on previous action, but in the present case there is no question of this. Romberg, as has been shown, did not participate in the Rascher experiments either in the beginning or in their further course. Nor did he have any right to dispose of the chamber. Nor did he have any right of supervision of duty of supervision over the chamber. His assignment read to carry out "experiments for rescue from high altitudes", which he did. Nor could the Defendant Ruff be considered obligated from this point of view, since the chamber did not belong to the DVL but to the Medical Inspectorate of the Luftwaffe. Dr. Ruff and Dr. Romberg did not belong to the Luftwaffe, however, but Stabsarzt [Staff Surgeon] Dr. Rascher did. Thus, if either of the three had had any right of supervision over the chamber, then it was only Stabsarzt Dr. Rascher, never the civilians Dr. Ruff and Dr. Romberg.
The second condition for the criminality of an offense of omission is that it can be proved that the action demanded would have averted the forbidden consequence. The Prosecution has not brought this proof, either.
It must, rather, be assumed that according to the situation prevailing at the time, any attempt by Romberg to use force would have ended with his death and thus the forbidden consequence would not have been averted.
But in both respects, both in view of a duty to act as well as whether it can be proved that this action would have averted the forbidden consequence, the essential prerequisite is the possibility of undertaking the necessary action and the possibility of having some effect on the undesired consequence. For especially here the principle must prevail; "ultra posse nemo obligatur." Where there is no possibility of averting the consequence, there can be no talk of criminal liability for the consequence. Therefore, conviction for an offense of omission demands that the judge be convinced that there was a possibility of acting.
But this conviction can never be attained after the presentation of evidence. It has been established that a spontaneous action of Romberg's would have meant only an attack on Dr. Rascher. That is certain above all because Rascher obviously ignored Romberg's warnings, because he obviously did not want to conform with Romberg in this point.
I wish to state once again that in view of the over-all situation it was not possible for Romberg to save the experimental subject and thus prevent the awful results. Romberg was a civilian, unarmed, and was in the concentration camp as a non-member of the SS. Rascher was an officer in the Luftwaffe and an SS man. He carried a gun and claimed to be justified in his actions on Himmler's orders. I beg to ask Your Honors how Romberg could, at that moment, have saved the life of the experimental subject.
Military Tribunal II, in its judgment of the Milch case, has recognized the principle of "ultra posse neme obligatur" by saying that legally a man cannot be expected to act like a hero. Had Romberg at that moment assaulted Dr. Rascher, he would not have been a hero but a lunatic. If you cannot expect a man to be a hero, surely you must not expect him to do something out of desperation. There cannot be any doubt that Romberg, had he survived the assault, would not have left the concentration camp again. This may be seen from Rascher's whole attitude as well as from his personal relations to Himmler, of whose staff he was a member. As proved earlier, Romberg did act, and that to a considerable degree. He did not merely save the life of one or three inmates but that of probably a large number when he removed the low pressure chamber from the Dachau camp and kept it away from there. I would like to know whether those who now cast the first stone at Romberg would have acted equally courageously and sensibly at the time as Romberg has been proved to have done.
He has worked on the problem of rescue from high altitudes in a continuous series of experiments on himself in the low pressure and freezing chambers, and given his contributions to the further progress and security of aviation in a number of scientific publications and in unpublished reports on his research work. His scientific achievements and his personal work were recognized through his appointment as head of the department for high altitude research in the Institute (page 20 of original) for aviation medicine of the DVL, he being the youngest among the roughly 40 heads of institutes and departments of the DVL, which employed about 2000 German people.
Dr. Ruff, formerly the chief of my client, speaks about the personal and scientific qualities of my clients, and I draw attention here to pages 6655/56 of the German and pages 6560/61 of the English record, as well as to page 6721 of the German and page 6627 of the English record.
Romberg was and is not a climber or an ambitious man. During the war he did not work for his graduation or aim at publishing as much as possible. He regarded it as his duty, his experiments and research work which served as the security of air crews. That he did not spare his own person becomes clear not only from the affidavits submitted to me, but is also emphasized by all affidavits submitted on behalf of Dr. Ruff where in some cases he is mentioned by name and in some others included as a matter of course among the assistants and their contributions.
Romberg's cooperation becomes particularly clear from the affidavit given by Dr. Voss, also from the affidavit by Engineer Heinz Lesser. I should also like to have reference in this connection to the affidavit by Dr. Otto Gauer; in praising Romberg's attitude Dr. Gauer says:
At a date later than the Dachau experiments mentioned by the indictment, experiments were carried out in the laboratories of Ruff, Romberg, and Gross which were made in order to clarify the important question of the combined effect of cold and lack of oxygen. In these experiments the experimental subjects were subjected to the lack of oxygen at an altitude of twelve kilometers only after having been exposed until an hour before to a temperature of minus 45 degrees C scantily dressed. Here the severe cold pain and shivering set in and the experimental subject was unable to sit and to write.
And Gauer adds:
Since Ruff had connections in Dachau through the altitude experiments, it would have been easy for him to obtain concentration camp inmates for these particularly dangerous and extremely painful experiments.
The same must be true for Dr. Romberg. He even was requested by Himmler personally to carry out the cold experiments with Rascher. Romberg's refusal to do this, but rather to carry out these "particularly dangerous" and "extremely painful" experiments — as related by Gauer as experiments on himself, this must be considered a new proof of the high ethical concept of his profession which was Romberg's.
Furthermore, Romberg offered himself as an experimental subject not only in the framework of his own field of activities but naturally in all other experiments of the DLV.
Thus, it is not without the element of the tragic that it should be Romberg, whose only aim it had been throughout all his research work to save human lives by responsible, even often dangerous employment of his own person, that he now should be charged here "to have participated in the National Socialist system of extermination, motivated by an evil spirit under the guise of science".
The affidavits submitted by me certainly demonstrate unequivocally that National Socialism was not the motivating factor for the actions of Romberg. In all, his severe criticism and rejection of the system at the time is emphasized. The fact that one affidavit was furnished by a Jewish family, who were friends of Romberg and his family during the war, characterizes his point of view perhaps most clearly.
Even the prosecution witness Wolfgang Lutz expresses himself in the same sense as to the political attitude of Dr. Romberg. By itself there would not exist any necessity to discuss so much the political position of my client if not the whole trial due to the wording of the indictment and by the publicity in radio and press had been tied up so heavily with politics.
It is absolutely obvious that the experiments carried out by Romberg in no way were the result of a National Socialist point of view. What drove him to undertake all his other work and these experiments was, besides his chosen task of airplane research, the urge to do his duty in a grave war and to help the population of Germany in its defense against a harsh aerial war.
It is true that this is perhaps a political motive, too, but not a National Socialist motive for that reason and not one which deserves such public defamation.
Romberg was given a chance to prove himself personally and in regard to his character, a chance which is granted to almost everyone during one's lifetime, when an unfortunate fate brought him in contact, for the purpose of working, with a man of Rascher's type for the first time. At the beginning of the experiments Romberg had to consider Rascher as an innocent physician and officer of the Luftwaffe because he (Rascher) was introduced to him (Romberg) by many older and more experienced men than he. Already soon thereafter, Romberg changed his opinion of Rascher and already in 1943 he described him to Professor Werner Knothe as a bad man and a pathological liar. That is Document 6 in the Document Book Romberg.
I believe that in the course of these proceedings it has been proved that Romberg did not fail in this test, one of the most severe ever faced by a human being.
Romberg is a quiet man and a reserved one, perhaps somewhat too much so; loud and boisterous talk does not agree with him, and thus he did at the time, without many words, what he considered his duty and what was right.
As soon as he realized that Rascher, on Himmler's orders, was doing things he could not agree to, he discontinued cooperation with him and never re-assumed it.
In Dachau, entirely on his own, supported only by his chief, Dr. Ruff, to whom he was tied closely in comradely collaboration, and covered from a far distance by Hippke, Romberg succeeded with the skill of a diplomat, not only to disassociate himself from Rascher — that might have been relatively easy by pretending illness.
But he did not stop there. He went on and got the low pressure chamber out of Dachau against the expressed, will of Rascher and Himmler.
By doing so, he not only prevented further experiments but he also, by stopping the series of experiments, saved for science the most important results of the experiments and thus gave meaning to the employment of the subjects and himself. For there can be no doubt that if he had only stepped out Rascher would have continued his experimentation in grand style and for a long time, and on the other hand had had no useful report on "Rescue from High Altitudes".
As soon as the necessary completion of the research report was performed, Romberg refused further collaboration with Rascher and above all he cleverly avoided the participation in the cold experiments ordered by Himmler.
By doing so, he faced dangers which today are about to be forgotten and which people from more happy lands can hardly imagine. The former Field Marshal Milch was acquitted under the charge concerning the altitude experiments. Generalarzt [General Physician] Hippke was not even indicted. Should Romberg, last link in the chain, be sentenced for the mis-deeds of Rascher?
Justice demands the acquittal of Romberg.
THE PRESIDENT: The Tribunal will now be in recess until 9:30 o'clock tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until 9:30 o'clock tomorrow morning.
(The Tribunal adjourned until 0930 hours, 18 July 1947.)