F. Necessity (continued 2)

Presiding Judge Beals: In what connection are these narrations, Witness?

Witness Hielscher: In connection with the question as to whether it was morally justifiable to enable Sievers to remain at his post.

Presiding Judge Beals: Such matters as that would not be material in this inquiry.

CROSS-EXAMINATION

Mr. Hardy: Now, what did Sievers ever tell you about the Sievers-Hirt skeleton collection? Did he ever tell you about that?

Witness Hielscher: Yes. He told me that Himmler had ordered—as far as I know, it was in connection with Jewish commissars who were under this terrible execution order which was valid in the East—that some of them were to be selected and used for the skeleton collection. The order was from Himmler, as Sievers reported to me.

Q. And did you know what they were going to do with these people?

A. Yes. It was the same as in the experiments. There a danger of death was a possibility; here it was certain.

Q. You knew, of course, that they were going to stand these people up, pick them out, select them according to size, take their anatomical measurements, then ship them to Natzweiler and at Natzweiler kill them, then deflesh them, then send the skeletons to the Strasbourg University for collection? And you knew that?

A. Yes.

Q. A fine thing for a resistance man to be involved in, isn’t it?

A. The situation, as I have said repeatedly, was as follows: We made no distinction in the real evaluation of the skeleton collection and other experiments in which there was this so-called “volunteering” and in which the result was the same—in our eyes, they were the same thing. I should like to emphasize one more thing. Does one have the moral right to tolerate a lesser evil in order to prevent a greater evil?

Q. Just a moment. Now in connection with the skeleton collection, do you further know that they dispensed with the idea of taking Jewish commissars but selected Jewish inmates of concentration camps?

A. Yes. What particular persons were selected I do not know, of course, but I knew that a number of Jews were to be gassed and were selected for this anthropological collection. That was the same case as in the Ghetto of Lodz. The Jewish commander of the Ghetto—that was Lieutenant Rosenblatt—after he had gained confidence in me because I had gone in with a false pass, said personally to me: “I was picked out by the SS. When a new group of Jews comes into this Ghetto of Lodz and crowds the Ghetto, I have to select exactly the same number of Jews and I know that they will be gassed. That is, I was selected by the SS to determine who is to be gassed. Now, I ask you in the name of God, Mr. Hielscher, you are a Christian, what am I to do? I had nothing to do with that. I have asked the Rabbis. I have asked the old people themselves, and we have come to the conclusion that I must stay in this office. At least I can determine the persons—I can at least select the oldest people who can’t stand life in a ghetto and perhaps, in this way, perhaps I will be able to save the life of one person. These two old people that I am telling you about were about seventy years old. There were five Christians among the Jews. At least I was able to see that these two old people were gassed together. They asked me to tell their daughter that we were able to achieve at least that. Tell me, did I do right or not?” That is still more horrible because the man could not even reduce the number. I was ashamed that the people who were in charge of this camp were called Germans. But I said: “You have acted right and you are justified in the eyes of God.”

Q. Now, Dr. Hielscher, I assume that the defense counsel has shown you all the documents concerning the skeleton collection. Is that right?

A. Yes.

Q. There won’t be any need for me to go over them. You have stated in connection with the one document that was presented to you today on the stand that this was a very praiseworthy act on the part of Sievers in a negative way. Since you are familiar with all the skeleton collection documents—I had intended to go into each one but I will just go into that one. That is Document NO-088, Prosecution Exhibit 182. This is a document which was written by Sievers. You will see that his signature appears thereon. Do you recognize the signature at the bottom of the letter?

A. Yes.

Q. Well, Sievers here is proposing a way in which they can destroy the skeleton collection so that it will not be known to any one—that is, to the Allies when they overrun Strasbourg. And you will notice, two-thirds of the way through, the one paragraph that states: “The viscera could be declared as remnants of corpses apparently left in the anatomical institute by the French.” You see that?

A. Yes.

Q. “In order to be cremated.” Now this is an idea of one Wolfram Sievers, wherein he is suggesting that these, or the results of these criminal activities be left so that they may, by the Allies, be blamed on to the French, and bearing in mind, of course that the French, as well as the United States, Great Britain, and other Allies were equally as interested as the resistance movements in defeating the Nazi regime, were they not?

A. I have already said that it was Sievers’ duty to say “yes” and to act negatively, but, of course, I did not praise this action, but I praised the vocabulary, the formulation. He spoke like a Nazi. The concrete question in such a case was simply as follows: Can anyone be saved here or not? If no one can be saved, what can I do to keep up the appearance of a Nazi since I know that Obersturmbannfuehrer Neuhaus suspects that I have some contact with the resistance movement? Sievers, since the 20th of July, or rather since my arrest, was constantly seeing to it that his actions looked like Nazi actions, insofar as no one was actually killed; that was part of his duty, part of the mask without which the organization could not operate.

Q. Yes. But from this letter does it not suggest that he was willing to allow an innocent Frenchman to answer for the crimes which flowed out of this skeleton collection activity?

A. If you show me—

Q. I have asked you—does it not appear from this letter, this letter signed by Sievers, that he was willing to allow a Frenchman to suffer for the crimes committed during the course of the collection of these skeletons?

A. Yes. The letter quite deliberately, I believe, creates this impression. That was the purpose of it, like all such letters.

EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS DR. ANDREW C. IVY^[8]

CROSS-EXAMINATION

Dr. Servatius: Witness, take the following case. You are in a city in which the plague is raging. You, as a doctor, have a drug that you could use to combat the plague. However, you must test it on somebody. The commander, or let us say the mayor of the city, comes to you and says, “Here is a criminal condemned to death. Save us by carrying out the experiment on this man.” Would you refuse to do so, or would you do it?

Witness Dr. Ivy: I would refuse to do so, because I do not believe that duress of that sort warrants the breaking of ethical and moral principles. That is why the Hague Convention and Geneva Convention were formulated, to make war, a barbaric enterprise, a little more humane.

Q. Do you believe that the population of a city would have any understanding for your action?

A. They have understanding for the importance of the maintenance of the principles of medical ethics which apply over a long period of years, rather than a short period of years. Physicians and medical scientists should do nothing with the idea of temporarily doing good which, when carried out repeatedly over a period of time, would debase and jeopardize a method for doing good. If a medical scientist breaks the code of medical ethics and says, “Kill the person,” in order to do what he thinks may be good, in the course of time that will grow and will cause a loss of faith of the public in the medical profession, and hence destroy the capacity of the medical profession to do its good for society. The reason that we must be very careful in the use of human beings as subjects in medical experiments is in order not to debase and jeopardize this method for doing great good by causing the public to react against it.

Q. Witness, do you not believe that your ideal attitude here is more or less that of a single person standing against the body of public opinion?

A. No I do not. That is why I read out the principles of medical ethics yesterday, and that is why the American Medical Association has agreed essentially to those principles. That is why the principles, the ethical principles for the use of human beings in medical experiments, have been quite uniform throughout the world in the past.

Q. Then you do not believe that the urgency, the necessity of this city would make a revision of this attitude necessary?

A. No, not if they were in danger of killing people in the course of testing out the new drug or remedy. There is no justification in killing five people in order to save the lives of five hundred.

Q. Then you are of the opinion that the life of the one prisoner must be preserved even if the whole city perishes?

A. In order to maintain intact the method of doing good, yes.

Q. From the point of view of the politician, do you consider it good if he allows the city to perish in the interests of preserving this principle and preserving the life of the one prisoner?

A. The politician, unless he knows medicine and medical ethics, has no reason to make a decision on that point.

Q. But as a politician he must make a decision about what is to happen. Shall he coerce the doctor to carry out the experiment, or shall he protect the doctor from the rage of the multitude?

A. You can’t answer that question. I should say this, that there is no state of no politician under the sun that could force me to perform a medical experiment which I thought was morally unjustified.

Q. You then, despite the order, would not carry out the order, and would prefer to be executed as a martyr?

A. That is correct, and I know there are thousands of people in the United States who would have to do likewise.

Q. And do you not also believe that in thousands of cities the population would kill the doctor who found himself in that position?

A. I do not believe so because they would not know. How would they know whether the doctor had a drug that would or would not relieve? The doctor would not know himself, because he would have to experiment first.

Q. Witness, I put a hypothetical case to you. If we are to turn to reality other questions would arise. I simply want to hear now your general attitude to this problem. You are then of the opinion that a doctor should not carry out the order. Are you also of the opinion that the politician should not give such an order?

A. Yes. I believe he should not give such an order.

Q. Is this not a purely political decision which must be left at the discretion of the political leader?

A. Not necessarily. He should seek the best advice that he can obtain.

Q. If he is informed that this one experiment on this one prisoner would save the whole city, he may give the order despite the fact that the doctor does not wish to carry it out, is that what you think?

A. He could then give the order, but if the doctor still believed that it was contrary to his moral responsibilities, then the doctor should not carry out the order.

Q. That is another question, whether or not he carries it out, but in such cases you consider it is permissible to give that order, is that what I understood you to say?

A. After he has obtained the best advice on the subject which he can obtain.

Q. Then he can give the order. Yes or no?

A. Yes.