that, on the contrary, the question must be asked how it could happen that such men found themselves in the defendants' dock."
I am not going to reply to the question of the ethical motives as a defense counsel until I deliver my final plea, and I am going to limit myself at this stage to the purely legal aspect of the subject. The reply is: Beiglboeck was forced to undertake the sea-water experiments for which he is indicted and has carried them out against his will, acting upon "an order from above" as a soldier. I am, of course, well aware of the fact that the Charter of August, 1945 and Control Council Law 10, which is the more direct basis of this trial, provides in Article 4, Paragraph 2, that the fact that a man acted under the order of his superior does not relieve him of his responsibility, but that this fact may be considered as an attenuating circumstance. This, however, merely means that reference to "an order from above" alone is not sufficient to exonerate a defendant but that this provision is by no means intended to render it impossible to invoke generally valid principles of law such as the exclusion of guilt on the groundsof fear and coercion. Now we, fortunately, have a very remarkable precedent in this question, namely, the verdict of the International Military Tribunal of Nurnberg which declares in respect of Article 8 of the Charter: "that a soldier was ordered to kill or torture in violation of the International Law of War has never been recognized as a defense to such acts of brutality, though the order may be urged in mitigation of the punishment. The true test which is found in varying degrees in the Criminal Law of most nations is not the existence of the order but whether a morale choice was in fact possible."
I shall prove to you beyond doubt by questioning the defendant himself, by producing evidence from superiors and colleagues, by submitting letters written by the defendant during the critical period that the defendant did everything in his power to disassociate himself from the experiments which were contrary to his high conception of the profession of a doctor.
III. The Indictment:
A.) THE CONSPIRACY:
Although it is contrary to the natural sense of justice to render an one responsible under criminal law for offenses committed by other persons, the indictment has, nevertheless, attempted to render the defendant, Beiglboeck, responsible together with the other defendants on all counts. In my final plea 2275 I shall not only Coal from the legal point of view with the question of the "order from above," but I shall also express an opinion on the problem of the legal character of the so-called conspiracy.
At this stage of the proceedings I shall deal only very briefly with the legal aspects saying that the Prosecutor had no justification at all in this trial to use the argument of conspiracy since the most important element, namely, the legal foun dation is lacking: if we turn to 'Control Council Law 10 for a moment, we find that only participation in a common design or a conspiracy in connection with a crime against peace is punishable (Article 2,1a). For this reason I am not going to say one word about the other experiments, although it would certainly be tempting to express an opinion as a jurist on tho question of Euthanasia. At any rate, one this clearly results from the documents, Exhibits No. 129 to 137 submitted by the Prosecution: that the defendant, Beiglboeck, has had nothing to do with the planning of the allowed crimes. I am going to prove by questioning him and his co-defendants that he knew only two of the so-called conspirators. Those were Handloser, who once gave a military medical lecture in Vienna a long time before the war, and Schraoder whom he knew as his supreme superior just as any soldier knows the names of his generals without ever having had any closer associations with them. Beigleboeck subsequently met Becker-Freyseng and Schaefer. All he can be indicted for from the point of view of criminal law, therefore, is his cooperation in the execution of these experiments and this loads me to the next point of the proceedings:
B.) The Criminal Character of the Experiments in General:
1.) The Prosecution considers experiments as
1.) War crimes.
A more prima facie consideration of the Prosecution documents reveals that there can never be any question of war crimes for the simple reason that such war crimes according to Article 11b.
of Control Council Law 10 can only be committed in respect of nationals of allied countries, and the Prosecution have utterly failed to present any proof of this to the Tribunal. I may, perhaps, remind you in this connection of the SOS call addressed by the assistant Prosecutor to the witness, Vieweg: "Of what nationality were the inmates which were used as subjects for sea-water experiments?" and he replied, "I am unable to answer this!"
(Page 473 of the German record). The witness, Vieweg, also testified that the subjects of the experiments were without exception German-speaking gypsies. I shall, therefore, not utter a single word about war crimes at this stage and I am now turning to the question as to whether the sea-water experiments represent so-called crimes against humanity. Control Council Law 10 gives no definition but contents itself with citing examples like murder, rape, and other cases of inhuman treatment of the civilian population.
It is an old experience of law that the prosecutor speaks louder and more emphatically whenever the facts as such furnish only little proof. Therefore, the chief prosecutor said comparatively little about the mass murders which have shocked the civilized world because they snake for themselves, but he has said relatively much about sea-water experiments. I shall, therefore, deal in my arguments of proof in the first place with
a) the character of the experiments
b) the manner of their execution.
As I am going to prove to you by questioning the defendant himself, by producing witnesses and experts, the sea-water experiments which had been prescribed to my client from the outset up to the smallest details and placed under a subsequent check were experiments which could be stopped at any moment. In the same way I am going to prove to you that Beiglboeck, at any rate, actually always did interrupt these experiments early enough to render a damage to the subjects' health quite impossible. A glass of water or a completely harmless injection was sufficient to restore to the subject his full efficiency.
In his opening speech General Taylor said, "The experiments have produced nothing that could be utilized for civilized medicine" (page 119 of the German record). I must very definitely contradict this conception. So long as there are seafaring nations, there exists also the wish, and it has always been an aim, which it was worthwhile to pursue, to render sea water, which is an element available in such large quantities, serviceable to humanity, in other words, to render it drinkable to save men in distress at sea, in particular in times of war, sailors and airmen, is truly serving humanity.
I shall, therefore, prove to you that other scientists of the Allies before Schaefer and Berka have attempted to solve the problem of rendering sea water drinkable. I shall submit to you research work on this point made by the Englishman, A. Parker and W.S.S. Ladell, and of the Ameri can, Elkinton, from which you may see that prominent scientists of the Allies have been engaged in studying in the service of humanity the same problem which is now being used to accuse Beiglboeck of a crime. May I also in this connection point out that it will always be one of the achieve ments of American science that an American professor, Andruss Ivy, was able to bring the same problem in a more perfect way near to its final solution a long time before the German Schaefer tackled it.
One may will turn with horror from the experiments which are the subject of this indictment, such as those performed by the sadist, Dr. Rascher; but one thing will clearly result from the submission of evidence, namely, that the chief prosecutor is wrong when he raises the collective suspicion in front of world public opinion by declaring that none of the experiments with which the indicted physicians are charged has furnished a contribution to civilization and humanity.
I now propose to turn to the last point of my statement considering the criminal character, namely, the manner in which these experiments were carried out. The chief prosecutor has also dealt with this aspect in his opening speech. He mentioned in particular the sea water experiments as a particularly striking example when he said, "Nothing more terrible than a piece of gelatin, a somewhat previous filter, and some salt water would have given the German Wehrmacht within a few hours the reply to the question and a review. If they had had to pay the small price of two dollars for each subject, the same price which American scientists must cry for a cat, they might have considered the matter more carefully and might not have created a big organization and performed experiments on forty-two men who were tortured." Now, I have the greatest respect for the chief prosecutor who proved himself to be an eminent lawyer, an expert on military matters in his great speech against the General Staff, but even he should submit to the principle that it should be left to the competent experts to give replies on special questions of detail.
Document Exhibit Number 132, report of the technical office of the Air Force to the Reichsfuehrer SS, now shows that two methods for rendering sea water drinkable were under discussion. The method invented by Schaefer, which for the mere setting up of the manufacturing plant required two hundred tons of iron and caused an expense of two hundred fifty thousand Reichsmarks, requiring up to three tons of pure silver monthly for the production process, made this method practically impossible in view of the raw material shortage in the German war machine. On the other hand the Berka method required no special manufacturing Plant and no bottle-neck raw materials and thus offered the possibility of speedy introduction by the Luftwaffe and the navy.
As is shown by the Vienna police record (Exhibits Lumber 137, 138, and 139) the Berka method was based on the not unfavorable preliminary experiments carried out by Colonel Sirany. Although this method opened up only negligible prospects of effectiveness, in smite of all the doubts expressed by the medical profession, even such small profit could not be- turned down with sufficient certainty in war at the time when a great nation was fighting for its existence. This also led an internationally recognized scientist like the clinical physician Eppinger to favor the re-examination of the two methods. I shall prove this by the hearing of the defendant and by evidence which the famous pharmacologist of Berlin University, Dr. Huebner, will give. As has already been mentioned, the experimental procedure had been prescribed to my client up to the smallest details. It will further be shown by the above evidence that the performance of these experiments on human subjects, which are in themselves quite harmless, is absolutely justified. The penal lawyer, however, is also interested in the even more important question as to who the subjects were on whom these experiments were carried out. I shall prove by the hearing of the defendant and by witnesses that in the first place, according to Eppinger's proposal, these ex periments were to be performed, in his own clinic or in military hospitals and that this proposal was rejected because of the military emergency and further that my client -- and this I shall also prove -- was explicitly assured that the subjects on which these experiments were performed were volunteers.
In forming an opinion on this question, it will be impossible to neglect the fact that Beiglboeck, as will be proved by his defense, was personally and subjectively convinced that he was dealing with voluntary subjects for his experiments. Beiglboeck had been assigned to combat units in the operation zone while the other experiments were carried on.
The concentration camp and its methods were absolutely unknown to him, and they have come to his horrified knowledge only in the course of this trial. At Dachau they had deliberately kept him apart from everything. And, finally, I am also happy to show with the help of original notes made by the medical assistants in these concentration camp experiments which have been found and by affidavits made by these same persons that Beiglbeock carried out these experiments which he had been ordered against his will as a soldier to perform after experimenting on himself and in accordance with the rules and precautions of medical science.
These documents when examined by experts will show beyond doubt that the experiments had no lasting damaging effects and caused no death among the subjects. They will objectively refute the contradictory evidence of the prosecution witnesses who gathered their knowledge from hearsay.
From this it must be concluded, however, that there can be no question of crimes against humanity either. In conclusion I can therefore say that if the evidence which I shall produce only yield half of what can be expected, the whole structure of charges erected by the prosecution on the subject of sea-water experiments will collapse like a house of cards and give effect to my submission to acquit my client, Prof. Dr. Bieglbeock. I should be happy about this because I would thereby have contributed for my part to preserving an eminent physician and man for my country which needs every man for its reconstruction; and I would furthermore have proved that scientific research and the physician in the more direct sense are not exclusive of each other but that they can well be a synthesis in the service of humanity and for the benefit of suffering mankind.
DR. KARL HOFFMAN: Mr. President, and Your Honors:
The Prosecution has submitted only a single document against Dr. Adolf POKORNY, written by himself. This is his letter to HIM LED. dated October 1941 - Document NO-35, Exhibit No. 142. The other documents which the Prosecution has submitted in this case are outwardly in no connection with the defendant Dr. POKORNY. They even, as Document NO-39, Exhibit No. 153 and the following shows, start a whole new causal series, in which the suggestion of the defendant Dr. POKORNY is overshadowed by the suggestion made by such a powerful agency as the deputy Gauleiter in Niederdonau.
The defendant will now take the witness stand and give the reasons which led to his letter - Exhibit No. 1942. He will point out that as a physician and a person interested in Botany he was convinced, after studying the publications of Dr. MADAUS and Dr. KOCH, that the plant caladium, from the medical point of view, does not have a specifically sterilizing effect, and that, from the botanical point of view, a plant indigenous to North America cannot be grown in Germany on such a large scale that it would be available in large enou -h quantities for sterilization. He will explain why in his letter he said exactly the opposite of what in his opinion was the truth. He will refer to a report which he received, that sterilization by operation was to be carried out on a large scale, but that it might be postponed if there should be any possibility of carrying out such sterilization by means of a drug. The defendant Dr. POKORNY will state that it was his intention to deceive by praising such a drug and thus to postpone the sterilization by operation as long as possible.
The Prosecution has already indicated that it does not propose to acknowledge such an argument. (P. 557 of the German transcript). The defendant Dr. POKORNY, however, will call witnesses to prove that he mentioned these considerations when he wrote his letter, and that he has not just invented them now. The defendant Dr. POKORNY will, in addition, reveal what the Prosecution could not present, the fact that he received an answer to his letter and that he in turn answered once more, so that in all the crimes with which he is charged his active participation involved only letters.
The defense will show that HIMMLER's efforts to produce a sterilization drug from caladium were unsuccessful. The Witnesses to be examined on this point are the responsible men of the MADAUS Firm in Dresden. The chemist of the firm will discuss the analysis and synthesis of a caladium juice. The botanist will testify to the question of growing the caladium plant in the hothouse. Finally, Dr. KOCH, who has already been mentioned several times in the course of this trial, the medical director of the MADAUS Firm, will appear as a witness.
Dr. KOCH will be asked by the defense to what extent he himself believes that the scientific assertion which he made, that caladium can be used to sterilize a human being, is true. He will also be asked by the defense whether it is at all possible in practice to produce enough caladium to justify even thinking of poisoning by caladium. Finally, he will also be asked to testify, what progress the caladium experiments which HIMMLER had ordered had made by the end of the war. It will then be shown that the caladium experiments were, at the end of the war, still in the stage of animal experiments and had not yet led to any usable result. If the witnesses from the MADAUS Firm in Dresden should in this connection not seem to be disinterested witnesses, Instructor (Dr. JUNG of the Pharmacological Institute of the University of Wuerzburg, who has been called by the defense as an expert, will discuss objectively the scientific value of Dr. MADAUS' and Dr. KOCH's thesis of sterilization with caladium. Moreover, he will state specifically whether caladium is capable of sterilizing a human being at all. He will finally state how high the general scientific value of drugs produced by the MADAUS Firm is and what German physicians think in general of the preparations which the MADAUS Firm has produced. Dr. JUNG will say in this connection that it is his opinion that German medical men know from experience that publications and drugs of the MADAUS Firm do not have absolute scientific validity, because it must be considered that this is a firm whose aim it is also to sell the drugs which it produces. Finally, the defense will call witnesses who will testify to the reputation, the political attitude, and other conduct of the defendant Dr. POKORNY during his civilian activity up to 1942 as well as during his period of military service. Evidence as to Dr. POKORNY's attitude will furthermore be given by numerous affidavits which will appear in the document book.
DR. HOFFMAN: The opening statements have now been concluded.
MR. MCHANEY: If the Tribunal pleases, the Prosecution has several comments to make concerning certain questions which have been raised by the opening statements of the Defense Counsel to the Tribunal. Does the Tribunal wish to adjourn prior to these remarks for the afternoon recess?
THE PRESIDENT: What are the nature of the comments the Prosecution desires to make and how long will it take to make them?
MR. MCHANEY: They concern briefly the motions and the nature of the motions to dismiss certain paragraphs of the Indictment as contained in a number of the opening statements, as well as the attack on Count 1 of the Indictment; that is to say, the Count which charges conspiracy to commit war crimes and crimes against humanity.
The Prosecution, of course, is not prepared at this time to make any argument on any of these points, but I think it would be well if we could reach some agreement as to the manner in which these questions are to be settled. In other words, the Prosecution would look with disfavor upon the procedure now, to settle each and every motion to dismiss prior to the time the Defense Counsel began to put in evidence on behalf of their defendants. We would prefer, if it is suitable with the Tribunal, and with the Defense Counsel, to have the Tribunal rule upon the particular motions to dismiss, as made by each Defense Counsel, prior to or immediately after such Defense Counsel has put in his approval.
THE PRESIDENT: You mean the rulings will be made in the case of each individual defendant when that defendant has rested his case?
MR. MCHARNEY: That would suit the Prosecution very much. The problem is this: The first question raised by substantially all of the opening statements is the legal basis for the crime of conspiracy. That question is common to all of the defendants, since each of them have been charged in Count 1. The Prosecution would be prepared to submit a brief on this question at a rather early date, I should think, at the least, by Monday of next week, so that the Tribunal could at any time rule on the question of conspiracy.
Be that as it may, I do not think there is any necessity for a ruling on that particular question because I do not think it affects the rights of any of the defendants in so far as proof is concerned. In other words, a conspiracy is made out normally by showing the participation of the defendants or their connection with the subsequent crimes that is, with the war crimes as alleged in Count II or the crimes against humanity as alleged in Count III, and which is not normally the subject of separate proof in and of itself.
And, I should think that whatever the ruling may be on the conspiracy question, each of the defendants will put in all of the proof that he has available; that he was not connected in any substantial manner with any of the crimes charged there -- Counts 11 and III.
As to the motion to dismiss with respect to certain paragraphs of Count II, there may be a slightly different question there which might require an early ruling by the Tribunal, but even as to that I am not sure.
The third question which has been raised by the opening statement is that a number the defendants have been implicated by proof of criminal experiments which were not explicitly particularized in the Indictment. For example, the blood coagulation, fleckfieber and warfare experiments. The Defense Counsel uniformly have taken the position that they are going to ignore this proof on the ground they were not claimed with the crimes which were involved in the experiments. As to that point, I should think there would necessarily have to be a ruling by the Tribunal before any defendant, who is affected by such proof, has completed his case.
And, I might say, without extended argument, that the Prosecution takes the position that the defendants have been sufficiently charged under paragraph 6 of the Indictment with having committed war crimes, in that they performed medical experiments on involuntary human beings which resulted in murders, tortures, and other inhuman acts.
The sub-paragraph of paragraph 6, purports to give particulars of certain of such experiments, but it is explicitly stated in the Indictment, and in paragraph 6 that the experiments were not limited to those particularized. The Prosecution urges that, because we have made every effort to advise the defendants in great detail of the nature of the crimes with which they are charged, we should not thereby be limited in submitting our proof and incriminating these defendants because they happen to have been involved in one or the other experiments which are not particularized in the Indictment. This last point I should think, would require an early ruling by the Tribunal. The ruling on the motion to dismiss, and particularly on the conspiracy Count I think, could be handled on an individual, basis sometime before the defendant had rested its case.
To rule on all of these questions, as raised by the defendants, would put an intolerable burden upon the Prosecution in preparing the necessary briefs for all 23 defendants, and would also require extended study by the Tribunal before a ruling could be reached, and this would result in a delay in the continuation of the presentation of the defendants evidence for, I should think, a minimum of a week, and very likely much longer than that. So, my position is that we be permitted to file brief on each defendant at a time, I should hope, before he begins to present his defense evidence. Such briefs, of course, would be made available to the Defense Counsel, and at same point before the conclusion of his case the Tribunal would reach a ruling in the question raised.
THE PRESIDENT: The Tribunal will ask the Counsel for the Prosecution that before the defendants are call upon to proceed with their evidence, the Prosecution Intends, itself, to ask a dismissal as to any count against any defendant?
MR. McHANEY: That may well be, Your Honor, I am not prepared, at this time, to make any detailed statement on that print, but after a careful analysis of the proof as it has gone into the Prosecution's case in chief, we will attempt to be quite liberal in eliminating any points which we ***n think are genuinely in issue and not genuinely proved by the Prosecution.
The PRESIDENT: It would seem, as to the objections raised by Defense Counsel, to certain evidence that has been introduced, as not fallin within the charges named within the Indictment, that the sooner that question be settled the better in order that the defendants would know what evidence they would have to prepare. If that question was not settle' until each defendant was called he would probably feel compelled to prepare evidence on these points which might or might not be pertinent.
MR. McHANEY: I think that is very true, Your Honor, and that was the third pain which I have stated has been raised by the opening statements of the Defense Counsel.
THE PRESIDENT: I understand the Counsel for the Prosecution, but I had the impression that the Counsel for the Prosecution thru each one of these questions could better be settled as the case of each individual defendant was called instead of settling it in advance. I may be incorrect. I may have misunderstood the Counsel for the Prosecution.
MR. McHANEY: I probably did not express myself clearly. I think the ques tion could probably be ruled upon rather easily and without the submission of any extensive briefs. A simply is a question of whether or not the charge contained in paragraph 6 is proof enough to permit the Prosecution to make proof of experiments which are not particularized, in sub-paragraphs of paragraph 6. And, once the Tribunal has decided one way or the other on that question then it will be either incumbent on the defendants to meet that proof in their case or they may if they chose disregard it.
Of course, the evidence, I think, no matter what way the Tribunal rules on the question just raised would be admissible and could be considered by the Tribunal against the particular defendant, especially on the conspiracy Count, and in any event, going to the notice and knowledge of the particular defendant; that is, knowledge of the scope of medical experimentations on concentration camp inmates.
Going to the question of admissibility of evidence, it is simply a question of whether or not it now constitutes a charge of crimes against the defendant upon whether he could be found guilty by the Tribunal; and, that is the question which, I think, would have to be ruled upon probably before any of the Defense Counsel presents any evidence in order that they would be advised of the Tribunal's attitude on that point.
JUDGE SEBRING: Mr. McHaney, the Tribunal understands as far as Count II and Count III are concerned, charges of crimes against Humanity and war crimes they are in and of themselves sufficient basis on which to predicate proof of criminality. The particulars of sub-paragraphs A to L, inclusive, are not a limitation upon the general allegate, but merely descriptive particulars of the general crime charged. Is that what you contend?
MR. McHANEY: That is correct, Your Honor.
DR. FLEMING: Attorney for the Defendant Mrugowsky; Mr. President, the Prosecution has just suggested that it did not desirable to them if the Court should now decide whether the indictment is insufficient on certain arounds and should therefore be dismissed.
I would like to point out the following: The majority of defense counsel hold the paint of view that there is no legal basis for the charge on the count of conspiracy. If the Court decides this question now, there will be no necessity for any defense counsel's going into this question during his case. It will therefore save time for the defense counsel and it will also save time for the Court who would have to listen to statements of defense counsel later.
Furthermore, the Prosecution in regard, to Count II of the Indictment, has stated that they consider it desirable, unless I misunderstood the translation, to state in detail what is charged against each defendant only when the case of that defendant comes up.
If the suggestion of the Prosecutions followed on this point, the consequence would be that the defense would not know, during the whole period of preparation, for which counts it must prepare material.
For example, in the case of Defendant Mrugowsky, I have five counts of Count II of the Indictment. I have stated that the charge is not founded and should be dismissed. The question now is whether I must call witnesses for those five counts, have affidavits prepared --- generally, prepare the entire defense -- or whether the Court will now examine the question whether the Prosecution has presented evidence on these counts which may be considered conclusive proof against tho Defendant Mrugowsky.
If the Prosecution has not submitted such proof, then, in my opinion, the charge should be dismissed and the Tribunal and the defense will not have to concern themselves with these counts anymore. Other defense counsel are in exactly the same position.
Further, the Prosecution pointed out that during its case, it submitted material on counts which were not included in the Indictment at all. I may point out that a regular charge, as demanded by the Charter, has not been made.
The Charter requires that the Defendant knows when he is charged and with what he is charged, and that he be presented with this information in sufficient detail. We do not know even today, which of the defendants the Prosecution is charging for the various experiments. I refer, for example to the Polygal experiments and similar experiments.
In the entire case of the Prosecution, this has not been stated. We are told only now which defendants are charged with which crimes, and what evidence and what proof the Prosecution has. I should therefore like to ask the Tribunal; whether at the present stage of the trial; a decision can be reached as to which counts the charges are inadequate and not according to the charter of the Tribunal; and should therefore be dismissed.
I ask that so defense counsel may know for the preparation of our case, what we have to deal with and what evidence we will have to present.
DR. FLEMMING: Attorney for Viktor Brach, Mr. President, part of defense counsel in their opening statements did not mention the inadmissability of Count I of the Indictment. I do not know the reasons for this. I can only speak for myself, consequently, when I say that I expressly and intentionally did not discuss this question because I consider it a part of the final plea. However, since the Prosecution has brought this important point up for discussion, and has suggested that it might be expedient to have the Tribunal decide on certain important points now, I should like to state, expressly for my client, Viktor Brach, that he agrees with the statements of defense counsel who objected to Count I this morning.
MR. McHANEY: I would like to state the Prosecution recognizes that the issue of the legal basis of Count I is being raised by all defendants. They need not make their application. We concede they all raise this question, although it has not been mentioned by all of them.
THE PRESIDENT: The record may show that is understood and agreed to by the Tribunal.
DR. SEIDEL: Attorney for the defendants Gebhart, Oberhauser, and Fischer; Mr. President, to supplement the statement of my colleague, Dr. Flemming, I should like to add the following:
I make the application which the Prosecution has just suggested. In the course of the proceedings, documents have been submitted concerning experiments and medical experiments which are not listed in the indictment.
At the beginning of the trial, one defense counsel stated that the Indictment did not fulfill the requirements of the Charter. It was pointed out that the Indictment did not list, in detail, the crimes with which the defendants are charged, and that it limited itself to legal statements.
I refer to Article IV of the Charter where it says:
"To preserve the rights of the defendants, the following procedure is to be taken: The defendants are to be given a copy of the Indictment as well as all documents within a reasonable period before the proceedings. The Indictment is to list the charges clearly and in sufficient detail in order to inform the defendants about the punishable actions with which they are charged."
I take the liberty of pointing out that before the proceedings the defendants were not given any documents whatever.