In this same letter of 4 October 1943, Haagen discussed Rose’s report concerning the Ipsen vaccine from Copenhagen. He concluded his letter by stating: “If we can get experimental subjects from the SS for test vaccinations, it would be an opportunity to test the liver vaccine as well on its anti-infectious effect. I would then suggest that our material be used parallel with the Ipsen tests.” Thus, Haagen testified falsely when he said that he did not propose experiments with Ipsen vaccine. In his letter he very specifically proposed performing anti-infectious experiments with the Ipsen vaccine as well as his own vaccine. This again proves that the use of the phrase “infectious experiments” could not possibly mean multiple vaccinations with living typhus vaccine. The Ipsen vaccine was a dead vaccine; it contained no attenuated virulent virus. Three vaccinations with a dead vaccine could not be designated an “infectious experiment” even by Haagen. (Tr. p. 9655.) Moreover the defense’s own proof shows that the Ipsen vaccine had already been tested for tolerability and found comparable with other vaccines used by the Wehrmacht. This is clear from Rose’s letter to the Behring-Works and Haagen, among others, dated 29 September 1943. (Rose 88, Rose Ex. 21.) It is quite clear that the only type of experiment left open for the Ipsen vaccine was precisely the kind that Haagen proposed, namely, after-infection of the vaccinated and control subjects with typhus.

Haagen was further impeached by the notes kept on his typhus experiments by his assistant, Miss Crodel. (NO-3852, Pros. Ex. 521.) Haagen definitely identified these notes as having been written by Miss Crodel. (Tr. p. 9691.) Miss Crodel had been an assistant of Haagen’s for many years and he found her most reliable. (Tr. p. 9701.) He conceded that Miss Crodel was very careful in her work. (Tr. p. 9697.) On page three of the notebook appears a series of entries dating from 30 April 1943 to 27 January 1944 concerning a series of experiments in Schirmeck. The entry for 19 May 1943 shows that two out of four mice injected with his vaccine died. The entry for 26 May reads: “(4 weeks) 3-6, 0.5 per person and 6 mice 0.5 i. p., 5 dead, after 10, 14, 14 days, the rest after 4 weeks.” This entry proves that on that date human beings were inoculated with Haagen’s vaccine. To say the least of this entry, five mice who were similarly vaccinated died as a result. The phrase “the rest after 4 weeks” can obviously refer also to deaths among experimental persons since it is quite impossible that this phrase could be used to refer to the one remaining mouse. The entry for 6 July indicates that on that date Haagen and his assistants appeared in Schirmeck for the purpose of withdrawing blood from ten persons, who had been previously vaccinated, for a Weil-Felix reaction test. The entry gives the serum titer value of eight of the experimental subjects. The entry is ended with the laconic note, “the other two were not here anymore.” This entry is conclusive corroboration of the testimony of the witness, George Hirtz, who stated that Haagen had tested his vaccine at Schirmeck in the summer of 1943. Approximately 20 Polish inmates were used in these experiments and, following the inoculations, two of the experimental subjects died. Hirtz testified that he himself sewed up the bodies of the inmates in paper bags and delivered them for cremation. The other experimental subjects had reactions such as high fevers, shock, and impairment of speech. (Tr. pp. 1293-1299.) His testimony is further corroborated by Haagen himself, who stated that two groups of ten inmates were inoculated by him in Schirmeck. The entry in the Crodel notes obviously has reference to one of these groups of ten, and upon arrival of Haagen and his assistants in the camp for the purpose of withdrawing blood, it was found that two of the subjects had died.

The entry for 4 October 1943 on page three of the Crodel notes reads “(six months) inoculated 20 persons in Schirmeck, Tube—2 cc. distilled water, 0.5 per person.” (NO-3852, Pros. Ex. 521.) This proves not only that Haagen testified falsely when he stated that he carried out no typhus vaccinations in Schirmeck after May 1943 but also that multiple vaccinations with his vaccine were performed. This entry bears the same date as Haagen’s letter to Rose, referred to above, which also stated that he was performing further vaccinations. The last entry on page three is dated on the original as 27 January 1943 and reads: “(9 months) mixed with the same amounts (as 21 May) distilled water tube, 20 persons 1.1 cc. each.” The date 1943 is obviously a mistake on the part of Miss Crodel in making the entry. This is proved by the fact that the period of time indicated in parentheses in the notes refers to the period of time the vaccine had been stored. Haagen so admitted. (Tr. p. 9711.) Thus the reference “(9 months)” means that the vaccine being used in that series of experiments had been stored for nine months since 30 April 1943, the date of the first entry on page three and the time the vaccine was first prepared. That 1943 in the original entry should really be 1944 also is apparent from page four of the notes wherein the last entry is for 27 January 1944. It is a common mistake for one to use the date of the old year during the first month of the new year.

Haagen inoculated another group of ten persons in Schirmeck on 10 October 1943 and 20 more on 27 January 1944 as seen from the entries on page four of the Crodel notes. Again on page five of the original, the entry for 14 October 1943 proves that ten persons were inoculated for the third time with 1.0 cc. of Haagen’s new vaccine. That this entry refers to the virulent murine vaccine and not to the Gildemeister dead vaccine can be seen from the preceding entry which speaks of four control persons being inoculated three times with Gildemeister vaccine. This fact is further apparent by comparing the quantity of the injections plus the amount of distilled water used per tube of Haagen’s new vaccine as set forth in other entries.

The entry for 25 May 1944 on page 7 of the Crodel notes states that 30 persons were inoculated in Natzweiler. “The inoculation took place during the incubation period (in a transport containing also sick people). Thirteen became sick in the period from 29 May to 9 June, of these, two died.” Haagen had repeatedly testified that he performed no vaccinations after January 1944 in Natzweiler. Not only did he perform experiments after January 1944, but as proved by the entry quoted above, subjects died during the course of such experiments. By his own testimony Haagen proves that these entries deal with an experiment during which the subjects were artificially infected with typhus. Although the entry euphoniously states that the vaccinations “took place during the incubation period,” Haagen testified, as had been repeatedly suggested by the prosecution, that it is impossible to know when persons are in the incubation period. The incubation period is that time between the infection and the first manifestations of the disease. Accordingly, it is impossible to know that a vaccination takes place during the incubation period unless the person has been artificially infected so that the date of infection is known. (Tr. pp. 9701-2.)

It is significant to note also that the chart on page 14 of Miss Crodel’s notes uses the word “nachimpfung,” meaning after-vaccination or re-inoculation, in connection with multiple vaccination experiments on two mice (both of which incidentally died), rather than the word “nachinfektion,” meaning after-infection or subsequent infection, which was repeatedly used by Haagen in his letters concerning experiments on human beings.

Haagen testified that the defendant Schroeder visited him on 25 May 1944, the very day on which he was carrying out experiments in Natzweiler. (Tr. p. 9632.) While it is, of course, entirely possible that Schroeder may have visited Haagen on 24 or 26 May, rather than on 25, the fact is quite clear that in any event Haagen’s very important experiments on typhus were discussed with Schroeder, contrary to the testimony of both men. The same is true with respect to the visit of the defendant Becker-Freyseng which took place shortly after that of Schroeder (Tr. p. 9569) and of Rose who visited Haagen both in 1943 and 1944. (Tr. p. 9570.) Haagen’s statement that Becker-Freyseng came all the way from Berlin to discuss with him the procurement of rabbits and mice is as incredible as the rest of Haagen’s testimony.

The defendant Schroeder testified that Haagen’s research assignment was not secret and attempted to argue on that basis that nothing criminal could have happened. (Tr. p. 3654.) Without pausing to point out the stupidity of such an argument, suffice it to say that Schroeder’s testimony was proved to be false by a list of research assignments issued by Schroeder’s office in 1944. Haagen’s typhus work was classified secret. (NO-934, Pros. Ex. 458.)

The testimony of the witness Nales corroborates the proof outlined herein above: That Haagen performed experiments to test the immunity of his vaccine by artificially infecting the subjects with typhus. Nales, a Dutch citizen, was arrested by the Gestapo in 1940 for allegedly participating in a resistance movement. Although he was tried and acquitted, he was committed to Buchenwald concentration camp in April 1941. In March 1942 he was transferred to Natzweiler and in November 1942 he became a nurse in the Ahnenerbe experimental station there. (Tr. pp. 10409-12.) He stated that in the latter part of 1943, 100 gypsies were sent to Natzweiler from Auschwitz for Haagen’s typhus experiments. Haagen found them physically unsuitable and thereafter an additional 90 gypsies were shipped in. These were divided into two groups and confined in separate rooms in the Ahnenerbe experimental station. One group was vaccinated against typhus. Approximately 14 days later, both groups were artificially infected with typhus. As a result, about 30 of the subjects died. Nales nursed the victims himself and saw the bodies. He talked to the subjects frequently and knows they did not volunteer, as indeed Haagen himself admitted on the stand. The gypsies were of various nationalities including Poles, Czechs, Hungarians, and Germans. (Tr. pp. 10419-23.)

Haagen’s long continued activity in Schirmeck and Natzweiler can be clearly seen from his account book on research tasks on yellow fever and typhus. His work in Schirmeck began as early as 20 April 1943. He was placing telephone calls to Schirmeck late in August 1944, over a year after Haagen’s alleged “last vaccination” there. These accounts were charged to the Medical Service of the Luftwaffe. (NO-3837, Pros. Ex. 542.) They were in such detail as to reveal on their face his activity in the concentration camps. (NO-3450, Pros. Ex. 519.)

Haagen admitted that by infection experiments one could mean only one of three things—(1) subsequent artificial infection with typhus, (2) vaccinations of large groups of people and then studying efficacy during a natural epidemic, and (3) Weil-Felix reaction tests carried out before and after a subsequent vaccination. (Tr. p. 9601.) He admitted that the prosecution’s interpretation of “infection experiments” and “subsequent infection” was equally consistent with his own. (Tr. p. 9611.) He admitted that the word “nachimpfung” (subsequent vaccination) could have been used as well as “nachinfektion” (subsequent infection). (Tr. p. 9611.)

There are no refined questions of documentary interpretation presented to the Tribunal. The simple issue is whether Haagen committed crimes during the course of his experiments. There is no dispute that these were “experiments”. Haagen repeatedly used the word in his own letters. There is no dispute that the inmates used as subjects were nonvolunteers, among whom were nationals of German occupied countries. Haagen admitted as much. The documents and the testimony prove that a substantial number of subjects were killed during the course of these experiments. Against this overwhelming proof stands the testimony of Haagen and Rose, both of whom perjured themselves repeatedly on the stand. Indeed, their own testimony is the best circumstantial proof as to the criminality of the experiments. One does not gratuitously testify falsely. Those who fear the light of truth commit perjury. These men regard their oaths as lightly as they did the lives of their helpless victims.

The guilt of Rose and Haagen is the measure of the guilt of Schroeder. As a medical officer of the Luftwaffe, Haagen was subject to his orders. (Tr. p. 3636.) The office of Schroeder issued the research assignments pursuant to which these experiments were carried out. It provided the funds with which to carry them out. It received reports on the experiments and knew they were performed on concentration camp inmates. (Tr. p. 1758.) Schroeder was himself in Strasbourg at the very time the experiments were going on. His guilt is clear and unequivocal.

c. Selections from the Argumentation of the Defense

EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT
ROSE

In order to reach a decision on the question of whether punishable behavior on the part of the defendant Rose is established, the Tribunal will have to examine the following: Did Professor Rose, in his capacity as consulting hygienist with the Luftwaffe Medical Inspectorate, have any commanding authority or the right and obligation of supervision at all over Professor Eugen Haagen at the University of Strasbourg? Did the defendant Rose participate in a penally relevant form in the experiments with typhus vaccine conducted by Haagen in the concentration camps at Natzweiler and Schirmeck? If so, the question of whether Haagen made himself liable to punishment or not can be left completely undecided.

As far as the first question is concerned, one thing is certain. Above all, Professor Haagen was a full professor at the University of Strasbourg at the time and also director of the Institute for Hygiene at this University. At the same time he was consultant on hygiene for the civil administration of Alsace. (German Tr. p. 9526.) During the war, in addition to this, he was a part-time consulting, hygienist with an Air Fleet. Finally, he applied for so-called research assignments for his experiments, including his typhus experiments, that is, in practice, financial aid.

First of all, it must be ascertained in which of his many capacities Professor Haagen conducted his experiments. In this connection the facts are perfectly clear. As a witness, Professor Haagen himself explained that he requested and received the research assignments which made possible his experiments, not as an officer of the Luftwaffe, but as director of a civilian research institute. As usual, therefore, the initiative was taken by the scientist. (Becker-Freyseng 70, Becker-Freyseng Ex. 48; Tr. pp. 6251-3; German Tr. pp. 7941-2, 8399, 9583-5.) The correctness of this description can be seen from the letter of Professor Haagen, submitted by the prosecution, addressed to the rector of the University of Strasbourg, dated 7 October 1943. (NO-137, Pros. Ex. 189.) In this letter Haagen requests his civilian superior, the rector of the University of Strasbourg, for special privileges for the Institute for Hygiene of the University (i. e., a civilian institution) based on the research commissions assigned to him.

The fact that the position of Professor Haagen was also interpreted by the Luftwaffe in this manner can be seen, for example, from the style of the letters addressed to him in matters relevant to his research and vaccine production assignments. They are not clothed in the manner of military orders, but possess the character of correspondence with a civilian office which was not subordinate to the Luftwaffe, either in the matter of receiving orders or of being under its supervision. A number of those invested with such research assignments have described to the Tribunal how they accepted these assignments for opportunistic reasons, e. g., to obtain priority grading and to protect their personnel from being drafted to military service. However, the fact that no subordinate relationship or supervisory right arose through the acceptance of such an assignment, can be seen likewise from the numerous statements of the recipients of such Luftwaffe assignments. (Schroeder 30, Schroeder Ex. 22; Schroeder 31, Schroeder Ex. 23; Becker-Freyseng 79, Becker-Freyseng Ex. 63; German Tr. p. 6720.) Obligations arose solely with regard to the computation of the money allowed, the reporting of any possible results achieved, as well as the mention of assistance in the event of a scientific publication.

Moreover, such financial aid is in no way limited to Germany but is common in many countries. No responsibility for possible errors and crimes, which the recipients might commit, can result from such financial assistance. As a matter of fact, Haagen never received a special individual assignment to carry out a certain series of experiments, but he was accorded, as per request, assistance for “typhus research.” However, financial assistance for typhus research is something quite normal. Incidentally, Haagen not only utilized the means put at his disposal by the Luftwaffe, but also contributions from the Reich Research Council and, most important, the personnel and equipment of his institute. Therefore, his typhus research was not a part of his military activities but was carried out within the scope of his civilian activities. Also, the fact that a reserve officer of the Luftwaffe, namely, Staff Physician [Stabsarzt] Graefe, appears as a collaborator in his typhus research work, alters none of the facts of the case. It is true that Graefe was a reserve officer in the same way as Haagen. However, his main profession was that of assistant in the Institute for Hygiene of the University of Strasbourg, and in this capacity he was subordinate to Professor Haagen who was, of course, the director of this institute. He was in no way subordinate to Haagen in the military sense, but to the Air Force Area VII. (German Tr. p. 9718.) Staff Physician Graefe, who was drafted into the Luftwaffe, was transferred, therefore, for purposes of further training, to the civilian institute where he worked as an assistant in peacetime. Such incidents occurred quite frequently in order to enable research activities in civilian institutes to be continued in wartime. As a result of this assistance given in respect of personnel, these civilian offices did not fall under the command and supervision of the military authorities.

The fact that Professor Haagen felt himself to be completely independent in his research activities can also be seen unequivocally from the fact that he procured further assistance from other offices disregarding his subordinate position with respect to the military. This means, without going through the military channels which were prescribed as binding in military matters. In his capacity as Oberstabsarzt of the Luftwaffe, he could not deal with the Reich Research Council without informing his superior thereof. Even less could he deal with the Reich Leader SS, with other offices of the SS, or, for example, with the Generalarzt Schreiber, who belonged to the army. He was, however, well able to do all of this in his capacity as director of the Institute for Hygiene of the University of Strasbourg. The correctness of this statement is shown most clearly in the important point, namely the procurement of experimental subjects in the concentration camps. In this case he did not conduct negotiations through military channels via the Medical Inspection of the Luftwaffe, but through his civilian channels, through the mediation of his university colleague, Professor Hirt, via the Ahnenerbe. He never informed his military superiors of these negotiations nor asked for their assistance therein, for as matters were, there was no reason to do so. The files show quite clearly that Professor Haagen had already conducted his experiments on prisoners in Schirmeck in May of 1943 in the same way as he continued them until the middle of 1944. In May of 1943, however, Haagen was—in a military sense—on leave of absence, and as far as his activities were concerned he was in no way subject to the supervision of the Luftwaffe. His appointment as consulting hygienist did not ensue until after 14 July 1943, because the letter from the Reich Minister of the Luftwaffe dated 14 July 1943 was not addressed to Consulting Hygienist Haagen, but to Staff Physician [Stabsarzt] Haagen, who had been given leave to work in his institute. (NO-297, Pros. Ex. 316.) After his appointment as consulting hygienist, however, his research activities do not differ in any way from those which he performed before this appointment. They remained civilian research activities as formerly.

Further attention should be called to the fact that the Luftwaffe showed no special interest in Professor Haagen’s research work. The only real interest of the Luftwaffe might have been in the actual production of vaccine. They tried to influence him in this connection, but without practical success. The Luftwaffe received no typhus vaccine from Haagen. His research activities had no connection with the wishes of the Luftwaffe regarding production; they were even in conflict with these interests.

The prosecution, it is true, has submitted a number of accounts from which it can be seen that telephone calls to Schirmeck and Natzweiler were paid for from Luftwaffe funds. (NO-3450, Pros. Ex. 519; NO-3837, Pros. Ex. 542.) Even if one were to consider the fact proved that these calls were in connection with his work in concentration camps, the whole nature of the accounts shows that Haagen treated his research work as a unit and divided the costs according to his own point of view among the different funds which had been placed at his disposal. The purpose served by the telephone calls cannot be inferred from the accounts alone. The arbitrary division of costs can be seen, for example, from the fact that a whole series of expenditures entered under “Influenza Account” referred to his typhus work. The department receiving the expense sheets had no possibility of checking in detail the purpose to which each enumerated item was put, and who the participants in the telephone conversations were.

Sufficient facts have already been produced to show that, in general, the Luftwaffe bore no responsibility for the research activities of the University Professor Haagen. Nevertheless, it is proposed to examine the question of whether a responsibility on the part of the defendant Rose for Haagen’s research work can be deduced from the fact that Professor Rose was consulting hygienist with the Medical Chief of the Luftwaffe; because the prosecution is mainly attempting to construe responsibility on the part of the defendant Rose from (1) the existence of the research assignments given by the Luftwaffe; and (2) the fact that Professor Haagen belonged to the Luftwaffe as a reserve officer.

There can be no doubt that Haagen was the medical officer of the Luftwaffe. First of all, he was consulting hygienist with the Air Fleet 1 until the year 1941. Then he was given leave to work in his Institute for Hygiene until a certain time, which must have been shortly after 14 July 1943. Then he became consulting hygienist with the Air Fleet “Mitte” which was later renamed Air Fleet “Reich”.

However, he did not conduct his experiments in his capacity as consulting hygienist. The tasks of a consultant did not include scientific research. They lay in other fields. Professor Haagen was never subordinate to the defendant Rose even in this military position as consulting hygienist of an Air Fleet. On the other hand, the defendant Rose had neither commanding authority, and neither the right nor the duty of supervision as far as Haagen was concerned.

From a military standpoint Haagen was subordinate to his air fleet physician in every respect. Incidentally, the defendant Rose had no superior rights nor supervisory obligations either with respect to Professor Haagen or to all the other consulting hygienists of the Luftwaffe. His official duties were exclusively limited to consultations with the Medical Inspector, that is, the Chief of the Medical Service of the Luftwaffe. (Compare Rose 6, Rose Ex. 6; Rose 7, Rose Ex. 7; Rose 8, Rose Ex. 29; Handloser 12, Handloser Ex. 12; Tr. pp. 2987, 6259; German Tr. p. 3346.)

There is no need to comment further on the fact that the defendant Rose particularly did not possess such rights and obligations with respect to Haagen in his capacity as a research scientist and director of the institute of the University of Strasbourg, which was in no way subordinate to the Luftwaffe. The correctness of these statements was unequivocally confirmed on the witness stand during my examination, not only by Professor Haagen himself (German Tr. pp. 9679-80) but also by the defendant Schroeder, who, after all, should know, having been the former Chief of the Medical Service of the Luftwaffe. (German Tr. p. 3734.) These facts should be sufficient to show that the defendant Rose had neither the power of command and neither the right nor obligation of supervision over Professor Haagen.

We still have to examine the second question of the possible participation of the defendant Rose in Professor Haagen’s research work in the concentration camps at Natzweiler and Schirmeck.

It is incontestable that the defendant Rose was cognizant of the fact that the Luftwaffe gave several research assignments to Professor Haagen, and that the reports issued by Haagen within the framework of these assignments were sent to him for his information. However, these reports never contained details from which a criminal activity on the part of Professor Haagen could have been inferred or assumed. Even the prosecutor, Mr. McHaney, during his interrogation of the defendant Rostock, expressly declared that even he doubted whether Haagen would have disclosed such details. (German Tr. p. 3346.) This interpretation corresponds completely with the facts. Professor Haagen’s reports consisted purely of scientific research work which was designated for publication. No reader could gather that they were based on illegal experiments. A plan of experiments was never submitted by Haagen in detail.

As has already been stated, it is true that the defendant Rose knew of the research commissions which had been assigned to Professor Haagen by the Luftwaffe. According to the nature of his official position, however, he exercised no influence on the assignment of such commissions. There were no misgivings about the assignments as such, for nothing of a suspicious or objectionable nature could be seen from their formulation. (Becker-Freyseng 37, Becker-Freyseng Ex. 23.)

This situation is not altered by the fact that the defendant Rose visited Professor Haagen twice in Strasbourg during the course of the war, the first time in the year 1943 and the second time in 1944. Clearly outlined assignments were dealt with on both occasions. During the first visit the question was discussed whether Haagen wished to reassume in addition the functions of a consulting hygienist of an Air Fleet. The second visit resulted from the desire of the medical inspection of the Luftwaffe that Haagen should comply with the request repeatedly made to him, to take up the production of vaccine. This second visit further served the purpose of discussing the question of a particularly expensive but necessary installation for reproducing various climates for the rabbit hutch in Professor Haagen’s Institute.

The reasons just mentioned for these two visits will be substantiated by documents submitted. The question regarding Professor Haagen’s assumption of the functions of a consulting hygienist with the Air Fleet “Mitte” is mentioned in the letter from Rose addressed to Haagen, dated 9 June 1943, (NO-306, Pros. Ex. 296) the procurement of the climate installation in Document NO-2874, Prosecution Exhibit 520. Moreover, the first of these two documents just mentioned shows quite clearly that the defendant Rose had no influence on the assignment of research commissions to Haagen. In answering a question from Haagen relevant to this matter, Rose had to limit his reply to the statement that the competent expert was absent.

In examining the relationship between Rose and Haagen, their further exchange of correspondence must also be mentioned.

Rose met Haagen when they were both division chiefs at the Robert Koch Institute in Berlin from 1937 until 1941. Both were specialists in the field of research into infectious diseases. Haagen specialized in virus diseases including typhus. The defendant Rose specialized in tropical diseases, parasitology, and vermin control. This fact explains the existence of a scientific private correspondence, part of which can be found in the files. According to the testimony of the witness, Olga Eyer, this correspondence was extremely cursory and consisted of only five to six letters from 1941 to 1944, during which time Fraeulein Eyer was Haagen’s secretary. (German Tr. p. 1781.)

The prosecution is obviously in possession of the entire exchange of correspondence between Rose and Haagen. The letters the prosecution has submitted from this correspondence deal with two subjects: The first group consists of the two letters of 5 June 1943 and 9 June 1943 (NO-305, Pros. Ex. 295; NO-306, Pros. Ex. 296) which contain an answer to the questions on the production technique of typhus vaccine. Rose, who himself is not a specialist in this field, had requested technical information and had received it. (In passing, it should be stated that the 30 to 40 persons mentioned in this exchange of correspondence signified the required manpower figure and not possible experimental subjects, as the prosecution asserts.) (German Tr. p. 9063.)

The principal letter of Haagen to Rose, dated 4 June 1943, which is mentioned in Rose’s reply dated 9 June 1943, would clear up the matter absolutely unequivocally. Unfortunately, it has not been submitted by the prosecution.

The second part of the correspondence between Rose and Haagen concerns the attitude of Haagen to the Copenhagen vaccine. Among others, Rose had also informed Professor Haagen, one of the leading German typhus-research scientists, about the result of his conversation with Dr. Ipsen in Copenhagen, as can be seen from the distribution of the report on the Copenhagen trip. (Rose 22, Rose Ex. 21.) This second part of the correspondence developed as a result of the transmission of this strictly scientific information, and the following letters from it were introduced by the prosecution during the trial:

Letter from Haagen to Rose dated 4 October 1943 (NO-2874, Pros. Ex. 520).

Letter from Haagen to Rose dated 29 November 1943 (NO-1059, Pros. Ex. 490).

Letter from Rose to Haagen dated 13 December 1943 (NO-122, Pros. Ex. 298).

Professor Rose furnished a detailed explanation of this exchange of correspondence during his direct examination. At the time he was only in possession of his aforementioned letter to Haagen dated 13 December 1943, whereas the two other letters were still withheld by the prosecution. Although, as a result of this, he was put in the difficult position of having to testify regarding an exchange of correspondence which took place four years ago, only a part of which he had available for reference, the correctness of his statements was completely confirmed in the essential points by the two other letters which were not introduced until later in the trial. (Tr. p. 6281.) It can be seen quite definitely from the first paragraph of Haagen’s letter to Rose dated 4 October 1943 that the actual interest of the defendant Rose lay in inducing Professor Haagen to produce a proven vaccine.

The question hinged on the climate installation which was necessary for the production of the Giroud vaccine from the lungs of rabbits. It was only necessary to establish an additional production plant for the Luftwaffe because the vaccine concerned was obtained from dead typhus bacilli and had been introduced for some time. At the end of his letter Professor Haagen once more refers to this purely technical question of production. In his letter Haagen also expresses his opinion and valuation of the Ipsen method. The penultimate paragraph of this letter is particularly important. It describes the great importance Professor Haagen attached to the serological experiments in weighing the results of the vaccination and of the state of immunity. He writes in this connection:

At the end of his letter, Haagen suggests that his own vaccines and the Ipsen vaccine be compared by examination. This is unequivocal proof of the proposal having been made by Haagen. The defendant Rose had not the slightest reason to assume that Professor Haagen intended to perform an immunity check with a virulent virus causing disease in human organism, since the Professor particularly stressed the importance of serological methods when testing the condition of immunity. On the contrary, he had to assume that Professor Haagen considered such an infection superfluous.

The prosecution objects to the fact that Haagen, when discussing the planned experiments in his correspondence with Rose, used such terms as “experiments of infection” and “subsequent infection.” But Professor Rose knew that Haagen was engaged in the development of live vaccine nonpathogenic to human beings. He even mentioned this in his lecture on typhus and malaria at Basel in 1944. (Rose 25, Rose Ex. 31.) Every expert knows that the application of living virus for the purpose of protective vaccination is a procedure of infection.

He was aware that Haagen worked on the further development of the method evolved by the Frenchman Blanc. This, too, can be found in the same passage of his Basel lecture mentioned above. The fact that the term “subsequent infection” was used by Professor Haagen in distinguishing protective vaccinations from live and weakened vaccines could in no way surprise or startle him. (Rose 69, Rose Ex. 59; Rose 60, Rose Ex. 60; Tr. pp. 6295-6; German Tr. 9639.)

It must be pointed out in this connection that the notes of the Natzweiler camp physician himself distinctly describe the vaccination which Haagen had occasionally called “subsequent infection,” as “vaccination”. His entries of 22 March 1944 state that “the actual ‘vaccination’ will now be carried out after two protective vaccinations have taken place.” (German Tr. p. 9782.)

The report taken from the Tropical Diseases Bulletin which I introduced in this trial shows, however, quite clearly that these infections were not dangerous and could, in the main, be controlled. (Rose 58, Rose Ex. 58.)

This report states that the Blanc live typhus vaccine was used by the French Government in Algeria in 3.5 million cases to combat typhus, and that as a result of these protective vaccinations, real typhus illness was found in only 5-6 cases per thousand. If one compares this figure of 5-6 per thousand with the total number of the vaccinations, it appears that in the course of this vaccination action carried out by the French Government, 17,500 to 21,000 cases of typhus illness took place as a result of vaccination. This result may justly give weight to the assumption that the French Government considered these incidents a justifiable and tolerable risk in view of the extent of the threatened danger.

It would be unfair to blame the defendant Rose for having taken no steps at all on learning that another research scientist, namely Haagen (who was not subordinated to him) was using a method which he knew was widely practiced. He had much less reason to do so since it was Haagen who tried by preliminary vaccinations with dead vaccines to avoid and to reduce the extent of the vaccination reactions and the danger of sickness as a result of the vaccination. Haagen’s reports and publications only deal with this object of a preliminary vaccination with dead vaccines and of the subsequent vaccination with a live, virulent vaccine nonpathogenic to human beings (subsequent infection). This field, with which he was not so familiar, was described in detail by the defendant Rose in his direct testimony. When interrogated, Professor Haagen, as the actual originator of the plans, substantially enlarged and in some instances corrected this description.

It does not seem feasible to me to classify as criminal, experiments which tend to make more bearable and less dangerous a recognized method already applied on millions of people.

In addition, there is no reply from the defendant Rose to this letter from Professor Haagen of 4 October 1943. It is not certain whether he actually received it. However, the possibility that he did receive it cannot be denied.

Chronologically, the next letter in this correspondence is Haagen’s letter to Rose of 29 November 1943. (NO-1059, Pros. Ex. 490.) The defendant Rose cannot remember ever having received this letter.

It is true that after this letter had been submitted to him by the prosecution during cross-examination, Professor Rose assumed that he must have received it, judging by the date and the conditions of the postal service at that time. (Tr. p. 6428.) However, he was misled when making this statement by a mistake in the reproduction. Whereas this letter is actually dated 29 November 1943, the date on the letter is given as 29 November 1942 in the German mimeographed copies distributed by the prosecution in the course of the cross-examination. Thus it was sent at a time when large quantities of mail were destroyed in trains or at post offices by the heavy air raids on German towns and communications. According to the resultant state of affairs, it is probable that he actually did not receive this letter. In this very letter Professor Haagen mentions that 18 of the 100 inmates had already died en route. The answers the defendant Rose gave on cross-examination before this letter had been submitted to him show clearly that he could not remember such information. (Tr. p. 6424-5.) He would hardly have been able to forget such a gruesome report if he had actually received this letter.

It also cannot be stated that the defendant Rose could only have written his letter to Haagen of 13 December 1943 (NO-122, Pros. Ex. 298) after having received Haagen’s letter of 29 November 1943. Prosecuting counsel, Mr. McHaney, however, alleged this when cross-examining Rose (Tr. p. 6431) thus causing confusion in the mind of the defendant Rose. For, in reality, Rose’s letter of 13 December 1943 is the reply to a further letter from Haagen dated 8 December 1943, as appears clearly from the introductory sentence in Rose’s letter of 13 December 1943. From this state of affairs it can only be concluded that either Professor Haagen did not mail this letter at all—perhaps in view of the information contained therein about the unfavorable conditions of health of the inmates—or else the defendant Rose did not receive the letter because it was destroyed along with a lot of other mail of the same date in the heavy air raids. The prosecution, no doubt, would not have failed to introduce this letter into evidence if the defendant Rose had replied to Haagen’s letter dated 29 November 1943. Professor Haagen’s suggestion in his letter of 4 October 1943 that the Copenhagen vaccine be tested, is again dealt with in Rose’s letter of 13 December 1943. In this letter Rose exclusively speaks of the testing of vaccine, without mentioning infections at all. In the letter a parallel is drawn to the Buchenwald typhus experiments only insofar as he indicated the advantage of the simultaneous testing of several vaccines. On direct examination, that is, prior to the submission of other documents which give greater clarification to the whole matter, the defendant Rose stated quite clearly and in agreement with subsequent evidence and the later testimony of Haagen, that the point in question was the application of the Copenhagen vaccine for preliminary vaccination, aiming at the weakening of the vaccination reaction in connection with subsequent vaccination with a live, avirulent vaccine nonpathogenic to human beings.

The two biologically parallel conditions which are obvious to every layman, one, the weakening of a reaction following vaccination with a live vaccine, and two, the weakening of a natural sickness, were explained in detail by Professor Rose on direct examination. (Tr. p. 6281.)

Finally, it must be emphatically pointed out that the plan discussed in this correspondence to test the effect of the Copenhagen vaccine on the weakening of vaccination reactions followed by the application of the new live avirulent typhus vaccine pathogenic to human beings as compared with other vaccines, was not carried out at all. After Haagen had succeeded in weakening the reaction in another way, namely by long storage, he was no longer interested in the Copenhagen vaccine. (Becker-Freyseng 62^[58]; German, Tr. 9614-5.)

Therefore, there only remains the examination of the question of whether the defendant Rose was responsible for Haagen’s activities, knowing that Professor Haagen had performed experiments on inmates with live avirulent typhus vaccines still in the testing stage. Apart from the correspondence discussed just now (part of which did not deal with experiments at all, while the other part referred to the discussion of an experimental plan which had been temporarily under consideration), the defendant Rose was only informed of Haagen’s activities through the latter’s reports which were sent to him for information and comments by the chief of the Medical Service of the Luftwaffe, through official channels. These, however, either contained simple information about the fact that Professor Haagen had asked for and received a commission for research, or else they were scientific publications containing nothing to which objections could be made.

The prosecution concluded from the letter of the Luftwaffe Medical Academy, dated 7 July 1944 to the Luftlottenarzt Reich [Air Fleet Physician Reich] that Haagen must have infected human beings with virulent typhus bacilli which were pathogenic to human beings because “control persons” were mentioned in this letter. (NO-128, Pros. Ex. 307.) This letter approves the publication of Professor Haagen’s work and that of his assistant Crodel: “Experiments with a New Dried Typhus Vaccine.” This work which had been submitted to the defendant Rose prior to publication actually shows clearly that these controls were meant to be a comparison of the results of serological examinations on patients from the camp epidemic with the serological examinations on persons protectively vaccinated. Haagen, whose main interest was in serological examinations, as already mentioned, had no reason whatsoever to perform artificial infections since the epidemic in the concentration camp at Natzweiler offered an abundance of persons for the purposes of comparison.

Finally it must be stated, in addition, that the experimental plans discussed in Haagen’s letter of 27 June 1944 to Professor Hirt never became known to the Luftwaffe Medical Inspectorate nor to Rose. (NO-127, Pros. Ex. 306.) Moreover, the general development of the situation (Haagen’s absence from Strasbourg, evacuation of the camp at Natzweiler, etc.,) shows that this planned experiment could never have been performed. The truth of this statement is further clearly proved by the testimonies of the witnesses Broers and Nales, according to which no more typhus vaccinations took place after April 1944.

EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
MRUGOWSKY^[59]

The prosecution stated in its plea: If Grawitz were still alive, he would sit here as one of the principal defendants on the defendants’ bench. This is certainly true. But Grawitz passed sentenced on himself. And what does the prosecution do? It indicts Mrugowsky instead of Grawitz. It does not consider in its arguments that Mrugowsky was not a private person but a medical officer in the Waffen SS, that is a soldier, and that Grawitz and Himmler were his military superiors. It speaks of conspiracy but it does not examine thereby to what extent a conspiracy may be conceived when military subordination plays its part. In its summing-up, both written and oral, the prosecution merely submitted the original allegations of the indictment. It completely ignored the evidence produced by the defendants, and merely pointed out a little scornfully that this evidence was mostly composed of affidavits. But this is no fault of the defendants. They would have preferred to be able to produce counter-proof taken from their own records. But all the documents belonging to the defendants and to other offices, from which the prosecution evidence emanates, are in the hands of the prosecution. It merely submitted those parts of the documents which, torn from their context, seem to incriminate the defendants. On the other hand, the prosecution made it impossible for the defendants to find the records connected with the prosecution evidence which would ensure a complete elucidation of the true facts.

I would ask the Tribunal to consider in particular this difficult position of the defendants with regard to evidence. It places particular emphasis on the old legal principle that the defendant is considered not guilty until his guilt has been proved, and in doubtful cases the Court is to decide in favor of the defendant.

The charges against Mrugowsky are composed of three groups:

(1) The typhus experiments and the aconitine execution which did not concern volunteers. In these cases the Tribunal will have to consider whether state emergency contended by Mrugowsky really existed, and if so, if the typhus experiments and the aconitine execution were justified. If the answer is in the affirmative, then neither the typhus experiments nor the aconitine execution is criminal, since there is no objection raised as to the manner in which they were performed. If the question is answered in the negative, then the next consideration is, if and to what extent Mrugowsky participated in them and if he is responsible under criminal law.

(2) The second group consists of the actions of Ding which he performed on his own initiative, e. g., his participation in a killing by phenol and the poison experiment on 6 persons.

(3) The third group consists of the protective vaccinations for which volunteers were available, according to the evidence produced by the prosecution.

The defendant Mrugowsky is indicted first of all for his alleged participation in the typhus experiments at Buchenwald and in other medical experiments. In its submission of evidence, the prosecution treated these experiments as criminal and as experiments performed by doctors. During the examination of the experts, Professor Leibbrandt and Professor Ivy, the prosecution also treated these medical experiments as experiments performed by doctors and asked the experts if these experiments were to be considered as admissible from the point of view of medical ethics.

I am convinced that the experiments on which the prosecution bases its indictment were in no way experiments which originated from the initiative of the executive physicians themselves. The experiments were a form of research work necessitated by an extraordinarily pressing state emergency, and ordered by the highest competent governmental authorities.

Professor Ivy also admitted that there is a fundamental difference between the physician as a therapeutist and the physician as a scientific research worker. When asked by Dr. Tipp: “So you admit that to the physician as a therapeutist, the physician who cures, other rules and, therefore, other paragraphs of the oath of Hippocrates apply,” he gave the answer: “Yes, I do, very definitely.”

Consequently, experiments on human beings, performed for urgent reasons of a public character and ordered by the competent authorities of the state, cannot simply be considered as criminal merely because the experimental persons chosen by the state for the research work were not volunteers.

The prosecution ought to have brought additional evidence with regard to the individual experiments to prove why they were criminal, apart from the fact that the experimental persons were not volunteers.

The largest space in the indictment against Mrugowsky is taken up by the typhus experiments at Buchenwald. The prosecution does not contend that Mrugowsky participated in them personally, but I further think I have proved in my written arguments that he neither suggested nor ordered nor controlled these experiments; that he did not further them nor even approve of them.

Nevertheless for precaution’s sake, I also must prove that the experiments in question were not illegal and that under no aspect can they be considered as criminal since they were caused by an urgent state emergency. This proof can be produced in a particularly impressive manner in the case of the typhus experiments.

In the Flick trial,^[60] the prosecution submitted Document NI-5222 which I have offered to the Tribunal. (Mrugowsky, Ex. 99.) This document, which comes from the Labor Office Westphalia and is dated 3 February 1942, states that according to information from military quarters, until recently the number of Soviet prisoners of war dying of typhus was still 15,000 daily.

I think I need no longer emphasize that a most pressing state emergency is considered to exist if from one single epidemic there are, I repeat, 15,000 deaths daily in the camps for Russian prisoners alone.

On the other hand, the prosecution stated that from the beginning of 1942 until the beginning of 1945, a total of 142 persons died as a result of the typhus experiments at Buchenwald. I place these two figures intentionally at the beginning of my argument. They show that during the entire period of the experiments in Buchenwald, the number of fatalities amounted to one percent of the toll taken every day by typhus in the Russian prisoner camps alone in winter 1941-42. In addition to these victims in the Russian P. W. camps, one has to consider the enormous number of people who died of typhus among the civil population of the occupied eastern territories and the German Armed Forces.

It is clear that under these conditions drastic measures had to be taken. When judging the typhus experiments carried out in the concentration camp Buchenwald one must not forget that Germany was engaged in war at the time. Millions of soldiers had to give up their lives because they were called upon to fight by the state. The state employed the civil population for work according to state requirements. In doing so it made no distinction between men and women. The state ordered employment in chemical factories which was detrimental to health. It ordered work on the construction of new projectiles which involved considerable danger. When unexploded enemy shells of a new type were found at the front, or unexploded bombs of new construction were found after an air raid at home, it ordered gunnery officers to dismount such new shells or bombs with the aid of assistants in order to learn their construction. This implied great danger. Then the fillings of the new shells and bombs had to be examined by analytical chemists to determine their composition. In certain cases this work was detrimental to the health of the chemists and their assistants and always considerably dangerous.

In the same way the state ordered the medical men to make experiments with new weapons against dangerous diseases. These weapons were the vaccines. The fact that during these experiments not only the experimental persons but also the medical men were exposed to great danger was proved when Dr. Ding infected himself unintentionally at the beginning of his typhus experiments and became seriously ill with typhus.

With regard to such medical experiments, one has to agree on principle with the opinion of Professor Ivy and Professor Leibbrandt that such experiments may only be performed on volunteers. But even Professor Ivy admitted that there is a difference between those cases in which a scientific research worker starts such experiments on his own initiative and the cases in which the competent organs of the state authorize him to do so. He answered the question of whether the organ of the state is responsible in the affirmative; but he added that this has nothing to do with the moral responsibility of the experimenter towards the experimental subject.

If the experiment is ordered by the state, this moral responsibility of experimenter towards the experimental subject relates to the way in which the experiment is performed, not to the experiment itself.

The prosecution did not contest that the experiments at Buchenwald were carried out correctly. By way of precaution, I offered evidence for the correct execution in my closing brief.

In answer to a question by Dr. Sauter, Professor Ivy observed that he did not think the state could take the responsibility of ordering a scientist to kill a man in order to obtain knowledge.

The case with the typhus experiments is different. No order was given to kill a man in order to obtain knowledge. But the typhus experiments were dangerous experiments. Out of 724 experimental persons, 154 died. But these 154 deaths from the typhus experiments have to be compared with the 15,000 who died of typhus every day in the camps for Soviet prisoners of war, and the innumerable deaths from typhus among the civilian population of the occupied eastern territories and the German troops. This enormous number of deaths led to the absolute necessity of having effective vaccines against typhus in sufficient quantity. The newly developed vaccines had been tested in the animal experiments as to their compatibility.

I explained this in detail in writing.

The Tribunal will have to decide whether, in view of the enormous extent of epidemic typhus, in view of the 15,000 deaths it was causing daily in the camps for Russian prisoners of war alone, the order given by the government authorities to test the typhus vaccines was justified or not. If the answer is in the affirmative, then the typhus experiments at Buchenwald were not criminal, since the prosecution did not contest that they were carried out according to the rules of medical science. In this case, any responsibility of Mrugowsky for these experiments is excluded. If, on the other hand, the Tribunal answered the question in the negative and declared the typhus experiments at Buchenwald to be criminal, then examination would have to be made as to whether Mrugowsky was responsible for them in any way.

In my written statement I explained in detail that Block 46 at Buchenwald, where the experiments were carried out, was not subordinate to Mrugowsky, but that Dr. Ding worked under the immediate orders of Grawitz. Out of the extensive evidence I offered to prove this fact, I only want to stress, one, the letter addressed by Grawitz to Mrugowsky in which Grawitz declared explicitly on 24 August 1944 that he gave his consent for the series of experiments he mentioned in the letter to be performed in Block 46 at Buchenwald, and two, the letter addressed by Mrugowsky to Grawitz on 29 January 1945 in which he suggests the testing of a jaundice virus and writes: “Please obtain permission from the Reich Leader SS to perform the infection experiments in the typhus experimental station of the concentration camp Buchenwald.”

These two letters demonstrate that even in autumn 1944 and early in 1945 Mrugowsky could still only have performed a series of experiments in Block 46 with special permission. This refutes the assumption of the prosecution that Block 46 was subordinate to Mrugowsky.

But above all, I want to stress again the affidavit given by Dr. Morgen on 23 May 1947 in which he stated that when he investigated the occurrences in Block 46 at Buchenwald, Dr. Ding showed him an order signed by Grawitz in which Ding was commissioned explicitly to carry out the experiments.

Dr. Morgen has further stated that he had to report to Grawitz personally about the result of his investigations as an examining magistrate at Buchenwald. The results here, too, according to the affidavit given by Dr. Morgen showed that Grawitz ordered the experiments. On this occasion he called Dr. Ding “his man,” and said he would be very sorry if the investigation caused any charges to be brought against Dr. Ding, since he had employed him for the experiments. Morgen emphasized that the name of Mrugowsky was not mentioned in the course of his conversations with Ding and Grawitz. This clearly shows, I think, that Mrugowsky had nothing to do with Block 46 at Buchenwald. As further evidence that Ding was actually subordinate to Mrugowsky in Block 46, the prosecution referred to the sketches designed by Mrugowsky. (NO-416, Pros. Ex. 22 and NO-417, Pros. Ex. 23.) These pictures show that the Division for Typhus and Virus Research in Buchenwald was subordinate to Mrugowsky; Mrugowsky does not deny this. Division for Typhus and Virus Research was only Block 50. Block 46 was called as formerly “Experimental Station of the Concentration Camp Buchenwald.” Mrugowsky’s letter just quoted shows this. Block 46 was merely attached to the Division for Typhus and Virus Research without establishing thereby any relationship of subordination to Mrugowsky. This is described and proved in detail in my closing brief.

From the two sketches designed by Mrugowsky, showing that the Division for Typhus and Virus Research was under his control from its establishment to the end of the war, nothing can be deduced, therefore, about whether he was Ding’s superior in Block 46.

This fact and the further evidence brought in my closing brief demonstrate that Block 46 at Buchenwald was not subordinate to Mrugowsky. Therefore, Mrugowsky bears no responsibility for the typhus experiments in Block 46.

In this connection, I want to emphasize that Mrugowsky never denied that he knew the typhus experiments at Buchenwald were ordered by Grawitz and carried out by Dr. Ding. He never denied that he saw, for instance, the report about the series I of the experiments, which he rewrote in his letter of May 5, 1942, and that he saw Ding’s essay about acridine which Ding sent to Grawitz for approval to publish 18 months after the experiments were completed, and which Grawitz then gave to Mrugowsky to return to Ding. But from this knowledge, no responsibility on the part of Mrugowsky can be deduced for the typhus experiments. The experiments were ordered by Himmler and Grawitz as his highest military superiors. As a medical officer of the Waffen SS, Mrugowsky had no possibility at all of opposing these experiments ordered by his superiors. When Grawitz first suggested the experiments, he resisted at once, and induced him to ask for a decision from Himmler as the highest superior. Himmler decided against Mrugowsky. Under these conditions Mrugowsky could do no more. His opposition, however, resulted in the fact that he was not commissioned with the experiments, but that Ding received the order for execution.

Nor has the prosecution brought any evidence to show that Mrugowsky subsequently intervened in any way in the typhus experiments at Buchenwald; that he furthered them, or participated in them in any way. On account of the fact that Mrugowsky knew about the typhus experiments, no charge can be made against him under criminal law, because neither in law nor in fact had he any possibility of preventing the experiments or enforcing their cessation later on.

The prosecution further based its charge against Mrugowsky on the depositions of several witnesses to the effect that he had been Ding’s chief in Block 46, also insofar as the experiments carried out by Ding in Block 46 were concerned. I have energetically contested this. All the statements produced by the prosecution in this respect originate from Ding. None of these statements comes from anybody who worked in Block 46 himself. It is significant that the prosecution has not been able to submit one single order given by Mrugowsky to Ding for the execution of typhus experiments, although its witness, Balachowsky, stated that Kogon had managed to collect and secure extensive evidence which he had handed over to the American Army. If there had been any written orders from Mrugowsky to Ding, the latter would certainly not have destroyed them for the sake of his own protection, and Kogon would have given them to the American Army with his other documents. It is true that the witness Kogon (whose unreliability I shall prove later) maintains that Mrugowsky gave mostly only oral orders to Ding. But he further testified that from the year 1943 onwards, Ding was no longer satisfied with oral orders from Mrugowsky but asked for them to be given in writing. In spite of this, not a single written order from Mrugowsky to Ding concerning the execution of a series of typhus experiments was produced.

The only witness who might be able to state from his own knowledge anything about the order given to Ding in respect of the typhus experiments is the witness Dr. Morgen. I just indicated that Morgen saw the order given by Grawitz to Ding for the execution of the typhus experiments, and that Grawitz personally told Dr. Morgen that Ding was his man at Buchenwald and said he employed him there.

The error of the witnesses, who stated that Mrugowsky had been Ding’s chief, results from the fact that Ding was dependent on Mrugowsky in respect of the production of vaccine in Block 50 and also concerning his activity as a hygienist. I proved in my closing brief that from 1942 to 1945 Ding was only working on the typhus vaccine experiments for about 2½ months, if one adds up all the hours he worked on them. All the rest of his activity in approximately 3 years was devoted to the vaccine production and the work of a hygienist, that is, work in which he was Mrugowsky’s subordinate. It is comprehensible that during the approximate period of 33 months when he worked for Mrugowsky, he received many more orders from him than from Grawitz for the execution of the 13 typhus vaccine experiments. It is, therefore, comprehensible that the main part of his correspondence under these circumstances was carried on with Mrugowsky.

In consequence of the description of the prosecution which hardly spoke of anything except the typhus vaccine experiments, and only produced documents thereon, the impression was certainly given that the typhus vaccine experiments were Ding’s main activity at Buchenwald. That is not so. In his main activity at Buchenwald, Ding was Mrugowsky’s subordinate. Therefore, because his main correspondence was with Mrugowsky and he called Mrugowsky his superior, one cannot assume that also in respect of the typhus vaccine experiments there was some connection between Mrugowsky and Ding, and that Mrugowsky participated in these experiments in any way or was responsible for them. The prosecution did not deny that such double subordination, as it existed between Ding on the one hand and Grawitz and Mrugowsky on the other, is possible in a military organization and happened frequently. I can refer also in this respect to the statement in my closing brief.

The testimony of the witness Kogon and Ding’s diary (NO-265, Pros. Ex. 287) are the chief items of evidence submitted by the prosecution against Mrugowsky. This is why, in my closing brief, I explained in detail that neither Kogon’s statement nor the Ding diary furnish any substantial proof. As to Kogon’s testimony, I want to emphasize once more the principal points:

Kogon described on the witness stand the dramatic circumstances under which he pretends to have saved the so-called Ding diary. I needn’t point out that the particular occurrences which happened when he saved the diary would have impressed him so much that he would not forget them if his statement were true. Therefore, he couldn’t possibly give a different description of this event on several different occasions. In fact, in the doctors’ trial and in the Pohl trial,^[61] he gave two reports about the way he allegedly saved the diary. These reports differ so fundamentally and in a manner which could only be possible if his contention that he saved the diary is untrue, and the descriptions he gives of this event are pure invention.

Kogon stated in the doctors’ trial that Ding sorted the secret documents to be burned in Block 46. While Ding and Dietzsch went into the adjoining room for a moment, he threw the diary and a heap of papers into a box to save them from destruction. Two days later he had told Ding that he had saved the diary and a heap of other papers from being destroyed and received permission to fetch them from Block 46; otherwise, he wouldn’t have been able to get them out. He fetched them and kept them ever since. This description is quite plausible and would be hard to refute if there was not Kogon’s own testimony in the Pohl trial.

In the Pohl trial, the same Kogon testified about three months later that he was standing with Ding and Dietzsch at the same table when the secret documents were sorted for destruction. Suddenly Ding pushed the diary and other papers towards him. He took them and carried them to Block 50, together with Ding. Ding did not know at this time that Kogon had the diary and the other documents with him, but he told Ding this on the same day.

A more striking contradiction than these two statements about the saving of the diary is hardly possible. If Kogon had really saved the diary in the way he described in the doctors’ trial, then the moment when he threw the diary into the box and his reflections during the two days before he told Ding that the diary had not been burned would have remained indelibly in his memory. He would have remembered the way from Block 46 to Block 50 to fetch the diary and the way back with the diary so well, that a different description would be impossible. Also, if the preservation of the diary had occurred in the way described by Kogon in the Pohl trial, it certainly would have been recollected by him so clearly that a different description would also be impossible. So the two descriptions about the preservation of the diary, differing so fundamentally from each other, can only be explained in two ways. Either Kogon’s statement is untrue and he didn’t save the diary at all—in this case, if he told the Tribunal a falsehood about such an important point, then his whole testimony is unreliable—or Kogon must have such a bad memory that his contradictions in his testimony can be explained therefrom. In this case, too, his entire testimony would have no probative value on account of his bad memory.

The Dietzsch testimony submitted by me speaks against the correctness of Kogon’s statement on the saving of the diary. Dietzsch states that during the destruction of the secret documents in Block 46 Ding tore up the diary in his presence and threw it into the lighted stove where it was burned. Dietzsch declared explicitly that Ding made sure that all the documents were entirely burned after the destruction of the papers was finished.

I should say that Dietzsch’s statement combined with the contradiction between the two statements of Kogon’s proves that what Kogon said about the saving of the diary is a falsehood.

In my closing brief I dealt in detail with still further points on which the statements made by Kogon in the doctors’ trial and in the Pohl trial contradict each other in a similarly marked manner concerning the preservation of the diary. It will not be necessary to repeat all these arguments here. I should like to refer the Tribunal to them.

The second main evidence of the prosecution against Mrugowsky is the diary which is said to have been saved. The two fantastic descriptions of the saving of the diary given by Kogon are unreliable. Therefore, Dietzsch must be believed. He said that Ding burned the original diary of Block 46 in his presence. This statement is supported by the opinion given by the handwriting experts, Zettner and Nastvogel, treated in detail in my closing brief.