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Volume II · Page 46
this unique amnesty had no application to Russians and Poles, who were used exclusively in those experiments.
But, assuming for the moment, that this alleged defense might have a mitigating effect under some circumstances, it certainly has no application to this case. Be it noted that this is an affirmative defense by way of avoidance or mitigation. There has been no proof whatever that criminals sentenced to death by an ordinary court could possibly be executed in a concentration camp. Such matters were within the jurisdiction of the Ministry of Justice, not Himmler and the SS. The experimental subjects we are dealing with are those that Himmler could condemn by a "stroke of his pen." If the inmate used in the experiments was condemned for merely being a Jew, Pole, or Russian, or, for example, having had sexual intercourse with a Jew, it does not answer the criminal charge to say that the victim was doomed to die. Experimentation on such a person is to compound the crime of his initial unlawful detention as well as to commit the additional crime of murder or torture. As has been said by another tribunal, "Exculpation from the charge of criminal homicide can possibly be based only upon bona fide proof that the subject had committed murder or any other legally recognized capital offense; and, not even then, unless the sentencing tribunal with authority granted by the state in the constitution of the court declared that the execution would be accomplished by means of a low-pressure chamber."*
In this connection, it might be noted that German law recognized only three methods of execution, namely, by decapitation, hanging, and shooting. (German Penal Code, Part I, Section 13; Reichsgesetzblatt [Reich Law Gazette], 1933, Part 1, p. 151; Reichsgesetzblatt 1939, Part I, p. 1457.) Moreover, there is no proof that any of the experimental subjects had their death sentence commuted to any lesser degree of punishment. Indeed, in the sulfanilamide crimes it was the experiment plus later execution for at least six of the subjects.
Since the defendants Gebhardt, Fischer, and Oberheuser have put particular stress on this alleged defense, I should like to make a few remarks in that connection, but it should be remembered that they apply with equal force to most of the other defendants. Gebhardt, speaking for his co-defendants Fischer and Oberheuser, took the position that the Polish women who had been used in the sulfanilamide experiments had been condemned to death for participation in a resistance movement and that by undergoing the experiments voluntarily or otherwise, they were to have their
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*United States vs. Erhard Milch. Concurring Opinion of Judge Musmanno, vol. II, sec. VII, B.
