Decision of the International Mock Trial on defendant Ernst Rüdin

The United Nations Headquarters in New York hosted the International Mock Trial on Human Rights as part of the 2023 Holocaust Remembrance under the UN Outreach Programme on the Holocaust. In an imagined courtroom, 32 students between 15 and 22 years old, from ten countries, interrogate the so-called father of Nazi Racial Hygiene, ardent Nazi Ernst Rüdin (his person was presented by an actor). A psychiatrist, geneticist, and eugenicist, Rüdin was responsible for untold suffering and death during the 1930s and 40s. On trial was the right for those most vulnerable to be protected from harm; the responsibility of leadership; and the place of ethics within the sciences.

The panel of three judges of the International Mock Trial consisted of distinguished and proven judges with experience at the highest level.

The presiding Judge, the Honorable Judge Angelika Nussberger is a German professor of law who was the judge in respect of Germany at the European Court of Human Rights from 1 January 2011 to 31 December 2019; from 2017 to 2019 she was the Court’s Vice-President.

The honorable Judge Silvia Alejandra Fernández de Gurmendi is an Argentine lawyer, diplomat and judge. She has been a judge at the International Criminal Court (ICC) from 20 January 2010 and President of the ICC from March 2015 to March 2018. In 2020 she was elected to serve as President of the Assembly of States Parties to Rome Statute of the International Criminal Court for the twentieth to twenty-second sessions (2021-2023).

And the Honourable Judge Elyakim Rubinstein, a former Vice President of the Supreme Court of Israel. Prof. Elyakim Rubinstein has also been an Israeli diplomat and longtime civil servant, who served as the Attorney General of Israel from 1997 to 2004.

Following the hours long proceedings of the International Mock Trial on Human Rights, where the prosecution and defense litigators presented evidence, witnesses and their arguments, the Judges deliberated, and then issued a unanimous decision. Each judge presented their decision and reasoning:

Honourable Judge Angelika Nussberger:

“Let me start by explaining in a few words why this case is so important. I want to highlight five aspects.

First, the case illustrates the disastrous consequences of an ideology where the individual and his or her dignity and destiny do not matter. In Nazi Germany, the propagandistic slogan was “You are nothing, your people are everything”. The case shows to which extremes such an ideology may lead. It is not only in the past, but also in the present that such ideologies exist, even if Nazi Germany was the most atrocious example. That is why the inviolability of the dignity of each human being should be the starting point for all legal assessments.

Second, the case illustrates white collar criminal responsibility, more concretely, the responsibility of scientists. They cannot act in an ivory tower and pretend not to be responsible for the consequences of their research, theories, and findings.

Third, the non-prosecution of someone who has committed atrocious crimes is an injustice so painfully felt even by later generations, that it has to be addressed. Even if justice cannot be done any more, it should be made clear what justice would have required to do.

Forth, even if a crime is committed by many and in many countries, it is still a crime.

And fifth, it is true that values and convictions change over time. Nevertheless, there are core values like human dignity and the right to life and to physical integrity that must never be put in question.

“Now, let me come to the assessment of Mr Rüdin’s case based on international criminal law.

The Prosecution is “Humanity”, so the case is not fixed in time and space. That is an important factor.

The Prosecution has brought the case against the Accused under the Statute of Rome, under the Genocide Convention and under the Statute of the International Military Tribunal of Nuremberg. These laws did not yet exist at the time when – according to the Prosecution – the Defendant committed his crimes, that is, before 1945. The principle of “nullum crimen sine lege” (“no crime without a law”) can be seen as part of the universally recognized principles of law. But this principle allows trial and punishment based on general principles of law recognized by civilized nations. Thus, the Statute of Rome, the Genocide Convention and the Statute of the International Military Tribunal of Nuremberg are applicable insofar as they mirror general principles of law valid already before 1945.

The first crime the Accused is charged with is incitement to crimes against humanity of murder, extermination, torture and persecution against an identifiable group or collectivity, here people with disabilities. It has been convincingly shown by the Prosecution that the Accused acted intentionally – based on deep convictions – in supporting the euthanasia and the sterilization program of the Nazi government in his writings and in his speeches and proclamations. There was a direct causal link between his research and public statements and the enactment of the programs based on those theories. The euthanasia and the sterilization program encompass the criminal acts of murder, extermination, torture, and persecution against an identifiable group. Accordingly, I find that the Accused should be held responsible in respect of charge number one.

The second crime the Accused is charged with is incitement to genocide. According to the Genocide Convention as well as to the Rome Statute genocide has to be committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. It is not, however, related to disabled people. Thus, it cannot be argued that before or even after 1945 there existed a general principle of law recognized by civilized nations identifying acts committed against people with disabilities as “genocide”. Accordingly, the accused cannot be found guilty of incitement to genocide and would have to be acquitted under charge number two.

The third crime the Accused is charged with is incitement to as well as directly causing the crime against humanity of sterilization. Sterilization is to be considered as an act of torture. Thus, what has been said under charge number one applies here as well. Accordingly, I find that the Accused should also be held responsible in respect of charge number three.

The fourth crime is membership in the criminal organization of the Association of German Neurologists and Psychiatrists. This organization was, as was shown by the Prosecution, responsible for the implementation of the Euthanasia program. Accordingly, I find that the Accused should also be held responsible in respect of charge number four.”

Honourable Judge Silvia Fernández de Gurmendi:

“Before giving my assessment of the crimes committed in the case we try here, I would like to congratulate all parties and participants for their presentations, you have all greatly contributed to a better understanding of the circumstances and ideas that escalated into heinous acts and ultimately led to the Holocaust.

Having listened carefully to all arguments, I am convinced beyond reasonable doubt that Mr Ernst Rüdin is guilty on all charges, except for the charge of incitement to genocide, for the reasons I will develop further.

I would like to focus briefly on three crucial arguments raised by the Defence.

First, according to the defense, Ernst Rüdin, who died 70 years ago, cannot be judged through the lens of our current laws and values.

Indeed, the principle of legality requires us to judge Mr Rüdin according to the law and values that were applicable at his time, not ours.

However, based on the evidence that was presented, including the public uproar provoked by the killings when they became known, I am convinced that his acts were neither legal nor acceptable at the time of their commission.

It is true that the theories advocated by the defendant were not initiated by him and were also endorsed in many other countries, including here in the United States, where many states had passed sterilization laws.

However, Mr Rüdin’s culpability is not based only on the theories he upheld but, rather, on the concrete actions he promoted to ensure their extreme implementation. This went far beyond forced sterilization, resulting in hundreds of thousands of deaths and ultimately paved the way to the Holocaust.

Second set of arguments. The defendant cannot be responsible for criminal acts because he held no official position.

However, I cannot agree with this argument, the Nuremberg Tribunal convicted and sentenced to death Julius Streicher, owner of the newspaper Der Sturmer, for his involvement in the Nazi propaganda against the Jews, although he did not hold any administrative position nor harm anyone directly.

Mr Rüdin was not part of the state apparatus either, but he exercised leadership in relation to the entire field of Psychiatry and Racial Hygiene. The Society of German Neurologists and Psychiatrists, which he led, became itself a criminal organisation as virtually all members and managing board were directly involved in the execution of the forced sterilization and the so-called “euthanasia” program.

Third set of arguments. The defendant’s conduct does not qualify as incitement to genocide because the “disabled” is not one of the groups included in the applicable definition of genocide.

I believe this is correct, as already referred here by the presiding judge Nussberger. Only attacks to destroy national, ethnic, racial, or religious groups may constitute genocide under existing law. Again based on the principle of legality, an expansion of this law cannot be done by judges but would require a reform of the Rome Statute. It is therefore not applicable to the defendant.

Distinguished participants, today’s trial demonstrates the dangerous slippery road that starting with discrimination, even in a theoretical form, may escalate to atrocious crimes. Indeed, genocide does not happen overnight. It is the culmination of a long process, which may begin with words, hateful messages, or, as in this case, pseudo-scientific theories to justify discrimination of a group.

Considering what we have learned today, it is now up to you to identify any current gaps in national or international law and to seek to promote additional standards as may be necessary to prevent and sanction more effectively any form of prejudice or intolerance.”

Honourable Judge Elyakim Rubinstein:

“It is amazing and disappointing that Ernst Rüdin escaped indictment in the post-Nazi era, and was able to end his life peacefully. How did it happen? Reading the shocking evidence poses this question, indeed shouts the question.

And I will not repeat the legal reasons brought by my honorable colleagues. The Shoah was the major Nazi crime. That does not mean that the wicked race ideology did not bear other rotten fruit, that may have lead to the Shoah, as mentioned before. Euthanasia and the crimes again connected with it, including the evidence of “the forced sterilization of 400,000 human beings” and “the systematic killings of 300,000 human beings including 10,000 children, who were labeled ‘feeble-minded’ or mentally ill or handicapped”, consisted a part and an implementation of that theory, for which the defendant was especially responsible. There is no real denial of that, supported by documents and not even by the speech by the defendant.

And beyond that there is the slippery slope: what started with euthanasia deteriorated into a much wider dark picture – the systematic murder of six million Jews and many others: Roma (Gypsies) and other human groups. In particular in an era of renewed antisemitism it is our sacred duty to remember and never forget. And this mock trial is a good reminder against those human rights violations.

The defendant argues concerning eugenics and sterilization that such actions were acceptable in different countries during the Nazi era. After having studied the evidence, I believe this is different in theory and practice. Here we deal with a major murder plan, whatever “scientific” packaging and theorizing was used. It is very difficult, indeed unacceptable, to compare it with an American case, albeit bad and puzzling such as Buck v. Bell. It stands by itself, as in the Unites States, while sad and totally unacceptable deeds indeed happened, it never developed into a “strategy of mass killing” of extermination.

I concur with my two colleagues and their well-written opinions. The main point that distinguishes Rüdin and his policy from other countries and their doctors was the translation of the theory into mass implementation, a pathway to the Holocaust. Indeed, he had no official position, but had “indirect direct” involvement, by training doctors and others to implement the crimes envisioned by him and his colleagues in the Society of German Neurologists and Psychiatrists, many of whom performed the “real” work. And I agree that the genocide treaty, initiated by a Jewish refugee from Poland, Raphael Lemkin, for legal reasons of interpretation of the Statute of Rome, should not be part of the conviction in the eyes of the criminal law which insists on the principle of legality.

I mentioned before, the subject of this trial, and Rüdin’s history and wicked influence, are ideologically and practically a part of the Nazi era, the climax of which was the Holocaust.

In this particular Rüdin case, Germans were a major part of the victims. The Shoah, of course, consisted mainly of Jewish victims. Humanity made a long way since 1945, both in international and domestic legislation of Treaties and Laws.

And I would like to express the hope and my two colleagues in fact, represent [through] their former positions as judges in the international effort for human rights and for criminal convictions of perpetrators. I would like to express the hope that crimes such as Rüdin’s could not happen today. Regretfully, I am not sure. There is the bad slippery slope; you begin with a step which may seem innocent, even scientific. You end up with millions of people exterminated.

The rise of antisemitism rather human rights violations is evident. It should be fought against by all legal means – public, diplomatic and judicial.

“This trial is not for revenge, which is in God’s possession. But we can speak of a positive revenge. New generations who rose from the ashes of the Shoah, those who survived who now have great grand-children and some of them are part of the team here.

Having said that, I am still optimistic that wherever there are perpetrators of crimes under international law, there will nowadays be efforts to enforce the law. Courts will stand up to the challenge.

Finally, the idea to conduct this mock proceeding was indeed right. The educational benefits are very important and self-explanatory. We all have to work against racist occurrences, foreign or domestic, with an eye to the future.”