IV

THE TWELVE NUREMBERG TRIALS

UNDER LAW NO. 10

DURING the closing months of 1945, when Law No. 10 was being drafted, it was thought by some that zonal tribunals established under Law No. 10 would try the hundreds of thousands of members of organizations ultimately declared criminal by the IMT. This was not done. In the American zone, the tribunals established at Nuremberg under Law No. 10 were composed of professional judges or experienced jurists, and were constituted for the trial of major culprits, many of whom bore an overall responsibility for the crimes of the Third Reich. Such tribunals were not suitable for the "assembly-line" proceedings which the "membership trials" would have entailed had they all been carried out at Nuremberg. The Nuremberg tribunals tried 177 individual defendants,78 and many of these were members of organizations declared criminal by the IMT and were charged with and tried for that offense among others.79 But the great bulk of SS officers and Nazi Party officials were tried, if they were tried at all, before local German "denazification" boards (Spruchkammern) 80

The task of determining who should be tried in the American zone under Law No. 10 was begun in May 1946. It had been largely completed by May 1947, by which time seven indict

78 One hundred and eighty-five were indicted in the twelve cases, but four of the accused committed suicide and four became too ill to stand trial.

79 No one, however, was indicted for membership alone. But several defendants were acquitted on all other charges and were convicted of membership (with knowledge or participation) only.

80 Usually the members (and other suspects under the denazification law) were tried in the city or town where they resided. By administrative decision, the less serious cases were tried earliest, so as to avoid the prolonged confinement of minor offenders awaiting trial. The major offenders were "reached" during the latter part of 1948, by which time the "temper" of the Spruchkammern had been radically affected by world events and the revival of German nationalism. Some of the acquittals and light sentences of more or less notorious Nazis and other offenders were sensational and, the writer believes, very ominous.

ments against 100 defendants had been filed, and the general scope of the remaining indictments determined, and was finished in November 1947, when the twelfth and last indictment was filed. For the most part, those indicted were in American custody, but there was a substantial interchange of war crimes suspects with the British, and some with the French and the Poles.81 The general basis upon which the Chief of Counsel decided whom to indict under Law No. 10, was stated as follows:

one of the first and most important responsibilities of my office was to determine, in the light of the best available information, where the deepest individual responsibility lay for the manifold international crimes committed under the aegis of the Third Reich. It should be emphasized that the Nurnberg trials have been carried out for the punishment of crime, not for the punishment of political or other beliefs, however mistaken or vicious. Consequently, in the selection of defendants, the question whether a given individual was or was not a "Nazi” in a political or party sense has not been governing. No one has been indicted before the Nurnberg Military Tribunals unless, in my judgment, there appeared to be substantial evidence of criminal conduct under accepted principles of international penal law.

Nor would it have been fair or wise to favor or discriminate against any particular occupation, profession or other category of persons. To preserve the integrity of the proceedings, it was necessary to scrutinize the conduct of leaders in all occupations, and let the chips fall where they might. . . .82

In each of the four largest cases between twenty-one and twenty-four defendants were named, in six others between twelve and eighteen, in another case six, and in one case only a single defendant. In order to narrow the factual scope of the trials, and to lend point and emphasis, each of the twelve cases

81 For example, when the Chief of Counsel decided to have a “medical” trial, the British turned over a number of SS and military doctors held by them and suspected of medical atrocities, so that all medical suspects could be tried in a single proceeding. Conversely, the British decided to try a number of suspects in Italy for war crimes committed against Italians after the fall of Mussolini, and the Chief of Counsel agreed to the transfer of Field Marshal Kesselring (then in American custody) to the British for this purpose.

82 Preliminary Report to the Secretary of the Army by the Chief of Counsel for War Crimes, 12 May 1948, pp. 2-3.

was "centred" on a particular occupational group of defendants. While there was considerable overlapping between the several classifications, the twelve trials may be divided into five general categories:

The procedure at these trials followed closely that worked out before the IMT, though many novel questions arose for which the IMT furnished no precedent. Most of the defense counsel who had appeared before the IMT remained for the Law No. 10 trials and were, accordingly, rather more "at home" in the courtroom than the prosecution counsel, most of whom were newly arrived from the United States84 and were facing novel research and procedural questions-to say nothing of linguistic difficulties-for the first time. The mechanical and administrative problems were simplified by the disappearance of the French and Russian languages from the courtroom, but were enormously aggravated as the number of trials simultaneously in progress rose from one to six.86

83 The "number of defendants" is simply the total number indicted in the cases in the right-hand column, and takes no account of overlapping, exceptions, suicides and illness, etc. Thus three of the twenty-three defendants in the "medical case" were not doctors, but administrative people involved in medical affairs. Likewise Milch, the sole defendant in Case No. 2, has been classified as a "government minister" since the principal charge against him was responsibility for deportation to enslavement and forced labor of foreign workers, incurred in the exercise of his authority as a member of the Central Planning Board. But Milch was a Field Marshal in the Luftwaffe and might, therefore, be classified as a "military leader." Such illustrations could be multiplied.

84 Only a very few members of the American prosecution staff before the IMT remained for the Law No. 10 trials.

85 Except, of course, when witnesses testified in other languages, the proceedings were conducted in German and English, using the simultaneous interpretation system.

86 Between December 1946 and December 1947 the number of cases simultaneously in process rose from one to six and the number of defendants in such

Doctors and Lawyers

The "Medical Case" was the first to open and the second to close.87 Officially designated United States v. Karl Brandt et al (Case No. 1), it was heard by a bench composed of Walter B. Beals (Chief Judge of the Supreme Court of Washington) presiding, Harold L. Sebring (Judge of the Supreme Court of Florida), and Johnson T. Crawford (Judge of the District Court of Oklahoma), with Victor C. Swearingen (formerly Assistant Attorney General of Michigan) as alternate member.

The indictment (filed 25 October 1946) named twenty-three defendants. Karl Brandt had, for a time, been one of Hitler's personal physicians and had risen at the age of forty to become Reich Commissioner for Health and Sanitation-the highest medical position in the Reich, directly subordinate to Hitler, with supervisory authority over all military and civilian medical services—and a major general in the SS. The other principal defendants included Lt. General Siegfried Handloser (Chief of the Medical Services of the entire Wehrmacht), Lt. General Oscar Schroeder (Chief of the Medical Service of the Luftwaffe), Karl Gebhardt (Chief Surgeon of the SS with the rank of major general and President of the German Red Cross), and the distinguished physicians Paul Rostock (Chief of the Office for Medical Science and Research under Brandt, and Dean of the Medical Faculty of the University of Berlin) and Gerhard Rose (renowned specialist in tropical medicine, who during the war was a consultant to Handloser and Schroeder). Six other defendants were staff doctors or medical consultants in the Luftwaffe, and six others (including one woman) were in the SS medical service.88 Himmler's personal adjutant (Rudolf Brandt),

cases from 25 to over 100, with corresponding increases in the necessary number of judges, prosecution and defense counsel, interpreters and translators, document clerks, typists, etc.

87 The "Milch Case" (Case No. 2), involving only one defendant, was the second to open and the first to close.

88 Including SS Major General Genzken (Chief of the Medical Service of the Waffen SS).

two other non-medical administrative officials,89 and two "civilian" physicians were also indicted.

The principal count of the indictment charged the defendants with criminal responsibility for cruel and frequently murderous "medical experiments" performed, without the victims' consent, on concentration camp inmates, prisoners of war, and others. At Dachau, it was charged, experiments were carried out for the benefit of the Luftwaffe in order to investigate the limits of human existence at high altitudes, and to determine the most effective treatment for flyers who had been severely frozen:

The experiments were carried out in a low-pressure chamber in which the atmospheric conditions and pressures prevailing at high altitude (up to 68,000 feet) could be duplicated. . . . Many victims died as a result of these experiments and others suffered grave injury.

...

. . . In one series of experiments the subjects were forced to remain in a tank of ice water for periods up to three hours.... After the survivors were severely chilled, rewarming was attempted by various means. In another series of experiments, the subjects were kept naked outdoors for many hours at temperatures below freezing. . .

92

At Dachau, Buchenwald, and elsewhere, concentration camp inmates were deliberately infected with malaria, epidemic jaundice, typhus, or other diseases in order to test vaccines and other drugs. Methods of sterilization and techniques for making sea water drinkable were among the other studies in which the

89 Victor Brack (Chief Administrative Officer in the Fuehrer's NSDAP Chancellery), and Wolfram Sievers (Manager of the "Ahnenerbe Society," sponsored by Himmler for "ideological" and "cultural" pseudo-research).

90 Kurt Blome (Deputy Reich Health Leader in the NSDAP) and Adolf Pokorny (a private physican who was charged with suggesting methods of mass sterilization to Himmler).

91 There were four counts. Count Two was the principal count. Count Three charged the same acts as constituting "crimes against humanity," as the victims included German nationals. Count One charged a conspiracy to commit the crimes described in Counts Two and Three. Count Four charged certain defendants with membership in the SS.

92 Indictment, Count Two, Par. 6 (A, B).