“Only the National Socialist”: Postwar US and West German Approaches to Nazi “Euthanasia” Crimes, 1946–1953

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Notes

In the last two decades, a vast literature on the Nazi “euthanasia” program (or “T-4” program, as it is sometimes called, after the Berlin street address of the office responsible for its operation—Tiergartenstrasse No. 4) has accumulated. Some of the leading monographs are: Klee, “Euthanasie” im NS-Staat; Friedlander, The Origins of Nazi Genocide; Aly and Heim, Vordenker der Vernichtung, 1991; Bock, Zwangssterilization im Nationalsozialismus; Burleigh, Death and Deliverance; Nowak, “Euthanasie” und Sterilisierung im “Dritten Reich”; Proctor, Racial Hygiene; Schmuhl, Rassenhygiene, Nationalsozialismus, Euthanasie. While the scholarly literature on Nazi “euthanasia” trials has lagged in comparison with scholarship on its evolution, the topic has generated international attention. See, for example, de Mildt, In the Name of the People, especially 80–226; Klee, Was sie taten, Was sie wurden; Friedrich, Die kalte Amnestie; Bryant, Confronting the “Good Death”; Weindling, Nazi Medicine and the Nuremberg Trials, particularly Chapter 13. Recently, the Dutch scholar Dick de Mildt published a massive compendium of West and East German verdicts in Nazi “euthanasia” cases: see de Mildt, Tatkomplex.

The trial of Brandt and his co-defendants before the American National Military Tribunal lasted from 9 December 1946 to 20 August 1947.

Taylor, Final Report to the Secretary of the Army, 200.

Quoted in ibid., 70.

Charter of the International Military Tribunal, Articles 6, 9, and 10, reproduced in Trials of War Criminals before the Nuremberg Military Tribunals (“Green Series”), xi–xii.

Ibid., Article 6. In the literature of the Nuremberg War Crimes Trials, the relative clause “in execution of or in connection with any crime within the jurisdiction of the Tribunal” is referred to as the “war nexus.”

Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946, vol. 1, 225–26.

By adding “invasions” to the definition of crimes against peace, the drafters created a legal ground for prosecuting the Anschluss and the annexation of Czechoslovakia, neither of which could be classified as an instance of warmaking.

Control Council Law No. 10, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law #10, October 1946–April 1949, vol. I, xvi.

For an exhaustive and foundational account of the history of the medical case, see Weindling, Nazi Medicine and the Nuremberg Trials. For a shorter description of the prologue to the medical case, see Bryant, Confronting the “Good Death,” 90ff.

Weindling, Nazi Medicine, passim.

The reason for the duplication of the euthanasia charge in Counts 2 and 3 likely resides in the nationality of the victims under each count: these were described in Count 2 as “nationals of German-occupied countries” (thus meeting the diversity of citizenship requirement of war crimes), whereas the victims in Count 3 were “German civilians as well as civilians of other nations.” As we have seen above, the dissolution by ACCL No. 10 of the war nexus enabled the American authorities in the 12 successor trials to charge the defendants with crimes committed on their own citizens—a practice impossible under the Charter's original definition of crimes against humanity, which had bound them to crimes against peace and war crimes.

Trials of War Criminals, vol. I, 8–17.

Quoted in Bryant, Confronting the “Good Death,” 38.

Ibid., 43–44, 97.

This latter engagement accounts for the Americans' interest in Brandt as a source of information on Germany's chemical warfare program.

Ebbinghaus and Dörner, Vernichten und Heilen, 624–26.

Weindling, Nazi Medicine, 251ff.

The US prosecutors continued to insist on the “war nexus” of crimes against humanity despite its abrogation in Control Council Law No. 10.

Bryant, Confronting, 97.

Dörner, “‘Ich darf nicht denken,’” 340, 348–49. Brandt's “state of necessity” argument went so far as to liken the sacrifice of individual patients and prisoners to the excision of cancer cells from the human body. In a conversation with Dr. Leo Alexander, a forensic medical expert at the trial, Brandt described Nazi medicine's conception of individual well-being vis-à-vis the demands of national health (Volkskörper): “We German doctors regard the state as an individual which is the primary object of our medical duty, and we therefore do not shy away from destroying an agglomeration of, for example, a trillion cells … if we believe they are destructive to the total organism—the state—or if we believe the state will thrive without them.” Quoted in Schmidt, “Die Angeklagten Fritz Fischer, Hans W. Romberg und Karl Brandt aus der Sicht des medizinischen Sachverständigen Leo Alexander,” 401.

Bryant, Confronting, 99.

Ibid., 101.

Ibid., 102.

Trials of War Criminals, vol. II, 278.

Bryant, Confronting, 102. Himmler did indeed agree with Brack's recommendation, and ordered two “euthanasia” doctors to begin sterilization experiments with X-rays, a program later abandoned for its impracticality.

Judgment of the Military Tribunal I, National Archives Records Administration—College Park (NARA), RG 238, M 887, Roll 1, 61, 11508.

Trials of War Criminals, vol. II, 197.

Ibid., 281.

Ibid., 278–79; Bryant, Confronting, 103.

Loewenstein, “Reconstruction of the Administration of Justice in American-Occupied Germany,” 419–20; Friedlander, “The Judiciary and Nazi Crimes in Postwar Germany,” 27–28.

Control Council Law No. 1 (20 September 1945), cited in Friedlander, “The Judiciary,” 28. As Loewenstein notes, both the Potsdam Declaration and JCS 1067 provided for the repeal of “peculiarly Nazi legislation.” Loewenstein, “Reconstruction,” 420. Control Council Law No. 1 reified the Allied intention to de-Nazify German law, announced as early as April 1945.

The Reichsgericht, the German Supreme Court before May 1945, was the fourth type of ordinary court in Germany. Dissolved with Germany's formal surrender in May 1945, it was succeeded by the Bundesgerichtshof when the Federal Republic of Germany came into existence in 1949.

Nobleman, “The Administration of Justice in the United States Zone of Germany,” 92–94; Loewenstein, “Reconstruction,” 422–28; Bryant, “Back into the Unmasterable Past,” 199–219; Friedlander, “The Judiciary,” 28; Rückerl, The Investigation of Nazi Crimes 1945–1978, 34.

Friedlander, “The Judiciary,” 31.

Two sources of law stymied German jurisdiction over crimes against peace and war crimes: (1) the requirement under the Laws of Armed Conflict that jurisdiction over war crimes existed only where there was a diversity of nationality between defendant and victim; and (2) the prohibition in ACCL No. 4, sustained in ACCL No. 10, which forbade German courts from presiding over Nazi crimes perpetrated on the soldiers and civilians of Allied countries. See ACCL No. 10, section 1, paragraph (d), Appendix D to Taylor, Final Report to the Secretary of the Army.

Bryant, Confronting, 109.

See Rückerl, The Investigation of Nazi Crimes, 40.

Excerpted in Bassiouni, Crimes against Humanity in International Law, 36–37.

Friedlander, “The Judiciary,” 32–33.

Rüter et al., Justiz und NS-Verbrechen (hereafter JuNSV), Lfd. Nr. 155a.

Ibid. According to Ernst Klee, the German scholar of Nazi euthanasia, Mauthe never served his sentence. In a judicial statement made in 1961, Mauthe said: “I was unjustly convicted in Tübingen and given five years in prison. I spent one year in pretrial custody, but the rest of the sentence was suspended.” He died in 1974. Klee, Was sie taten, Was sie wurden, 85; idem, Das Personenlexicon zum Dritten Reich, 396.

Von Henle and Schierlinger, Strafgesetzbuch für das Deutsche Reich, 227.

Dombrowski, Strafgesetzbuch, 83.

Bryant, Confronting, 109 ff.

JuNSV, Lfd. Nr. 014.

On the “collision of duties” defense, see below.

JuNSV, Lfd. Nr. 232–233.

Ibid.

Ibid.

The details of Weber's post-trial career are recounted in Klee, Was sie taten, 205–06.

JuNSV, Lfd. Nr. 003, 33–35.

Ibid.

The German Civil Service Law of 1937 stipulated in §7, Paragraph 2, Clause 2, that “the civil servant shall not obey an order which would clearly violate the criminal law.” Dick de Mildt, ed., Tatkomplex, vol. 1, Lfd. Nr.1b: KG 24.8.1946, 13.

Ibid., 13–14.

JuNSV, Lfd. Nr. 011.

JuNSV, Lfd. Nr. 017.

61 RGSt. 242 (1927).

JuNSV, Lfd. Nr. 088.

Ibid.

JuNSV, Lfd. Nr. 102 (trial of W. Creutz et al.). For other trials that accepted the collision of duties defense to acquit euthanasia defendants, see JuNSV, Lfd. Nrs. 155a (trial of Otto Mauthe et al.), 226 (trial of Ludwig Gessner et al.), 225 (trial of Dr. Recktenwald et al.).

Bryant, Confronting, 198–99.

JuNSV, Lfd. Nr. 383, 10–13.

Ibid.

Ibid., 16.

On the shortcomings in the Tribunal's judgment on Brandt, see Weindling, Nazi Medicine, 299–300.

Harrison v. U.S., 7 F.2d 259, 263 (CCA 2nd 1925).

A former US Army intelligence officer once informed me that his unit's primary interest in Western Europe was seizure of German military intelligence in advance of the Soviets.

Jackson, Report of Robert H. Jackson, vi; memo from Jackson to Taylor, 5 February 1946, National Archives Records Administration—College Park (NARA), RG 238; Taylor's letter to Howard Petersen, 22 May 1946, NARA, RG 238.

NARA, RG 107, Entry 74A, Box 5, German War Crimes, 27 October 1944, attachment, 1f.

Ibid., attachment, 3.

Ibid., attachment, 6.

Ibid., letter of 27 October 1944, 2f.

Ibid., attachment, 2.

In a September 1944 memorandum to President Roosevelt, Stimson dismissed the idea of prosecuting anything other than war crimes. He implied by analogy that a military commission had no more jurisdiction over a crime unconnected to the war than a foreign court would have over perpetrators of lynching in the American South. See Henry L. Stimson, “Memorandum Opposing the Morgenthau Plan,” 9 September 1944, reproduced in Marrus, The Nuremberg War Crimes Trial 1945–46, 26–27.