Chapter VIII: Evidence and Arguments on (4)

_The guiding legal_ aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect does not coincide _eo ipso_ with the “_objective_” principle of balancing interests, as discussed in examining the case of the defendant Karl Gebhardt. In addition one must insist on consideration of the “_subjective_” position of the person committing the act.

In other words, in order to arrive at a _just_ appreciation of the case, the _personal situation of the person committing the act at the moment of its being committed_ will have to be weighed up as well. This applies particularly to the personal situation into which the person committing the act has been put by reason of a higher command which is binding for him and influences him. _Besides_ the general “objective” principles of balancing interests, such a special “subjective” state of coercion can and must therefore be considered in his favor also. A “command” can, therefore, according to the concrete situation, shift the boundaries of culpability further in his favor.

Reinhardt Frank, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim, “In as far as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law.”

With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an _ethical nature_. That is why, in such a situation, a certain leeway must be left to the personal conscience; it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely “personal” character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicholai Hartmann, Ethics (2d Edition, 1935, pp. 421-422) says for instance, with regard to genuine conflicts of values:

“It is a fateful error to believe that such problems can be
solved on principle in theory. There are border-line cases in
which the conflict in conscience is grave enough to require a
different solution according to the particular ethos of the
person. For it lies in the very nature of such conflicts that
values are balanced, and that it is not possible to emerge from
them without becoming guilty. Accordingly, a man in this
situation cannot help making a decision. A person faced with
this serious conflict, incurring such a measure of
responsibility, ought to decide this—

“_To follow the dictates of his conscience to the best of his
ability, that is, according to his own live sense of the level
of values and accept the consequences._”

No further argument should be needed for demonstrating that just from an _ethical_ point of view measuring of such _personal_ decisions by standards of _penal law_ is out of the question.

* * * * *

d. Evidence

_Testimony_
Page
Extracts from the testimony of defendant Karl Brandt 970
Extract from the testimony of defendant Rose 973

EXTRACTS FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[156]

_EXAMINATION_

* * * * *

JUDGE SEBRING: * * * Witness, for the sake of clarification, let us assume that it would have been highly important to the Wehrmacht to ascertain, as a matter of fact, how long a human being could withstand exposure to cold before succumbing to the effects of it. Do you understand that? Let’s assume secondly that human subjects were selected for such freezing experiments without their consent. Let’s assume thirdly that such involuntary human subjects were subjected to the experiments and died as a direct or indirect result thereof. Now, would you be good enough to inform the Tribunal what your view of such an experiment is—either from the legal or from the ethical point of view?

DEFENDANT KARL BRANDT: I must repeat once more, in order to make sure that I understood you correctly. When assigning the experiment the following things are assumed: highest military necessity, involuntary nature of the experiment, and the danger of the experiment with eventual fatality. In this case I am of the opinion that, when considering the circumstances of the situation of the war, this state institution which has laid down the importance in the interest of the state at the same time takes the responsibility away from the physician if such an experiment ends fatally and such a responsibility has to be taken by the state.

Q. Now, does it take away that responsibility from the physician, in your view, or does it share that responsibility jointly with the physician, in your view?

A. In my view, this responsibility is taken away from the physician because, from that moment on, the physician is merely an instrument maybe in the same sense as in the case of an officer who receives an order at the front and leads a group of three or four soldiers into a position where they are certain to meet death. That position, if I apply it to German conditions during the war, is in principle the same. I don’t believe that the physician as such, from his ethical and moral feelings, would carry out such an experiment without this assurance of the authoritarian state which gives him a formal and legal assurance on one side and, on the other side, gives him the order for the execution. Naturally, in this case, it is a theoretical question since I cannot survey the position in the case of the freezing experiment. I don’t know how this assurance was given and how the order was given. Basically, I want to differentiate between the order for an experiment which arises from medical needs as such and where, under the circumstances, the state only has a secondary interest on the basis of medical initiatives, and I would differentiate between the reverse state of affairs where the state uses medical activities.

Q. The Tribunal has one further question of interest.

In your view, would an order which authorized or directed a subordinate medical officer or subordinate medical group to carry on a certain medical experiment—let us assume for the moment this freezing experiment—we have then a general order, let us assume, directing a certain institute to carry on freezing experiments without delineating or specifying in detail the exact course of those experiments. Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death to the subject?

A. May I have your last sentence repeated, please? This question is extremely difficult to answer. The order given in such a case has to be taken into consideration. May I, perhaps, answer with an example of such an order. If Himmler gives an order to a Dr. “X” and tells him to carry out a certain experiment, then it is possible that Dr. “X” did not wish to comply with this order. In such a case, however, Dr. “X” will not have overlooked the importance of the experiment itself, the same way as the lieutenant who received a certain military order—and we are here concerned with a military order—does not overlook that he would have to hold out with a group of eight men at a bridgehead and that this would end in his death. In spite of that, this officer with his eight men to whom he passed this order on would meet their death at that position. So this physician “X” who received this order from Himmler would under the circumstances have to carry out an experiment without being able to judge the validity of the reasons which prompted a central agency.

If a physician had not carried out that experiment, he would have got into a position where he would be called to account if he had not carried out that experiment. In this case, and there we have to consider the authoritarian nature of our state, the personal feeling and the feeling of a special professional, ethical obligation has to subordinate itself to the totalitarian nature of the war.

I must say once more, these are theoretical assumptions which I am expressing here. At the same time I could express how difficult such decisions are if I refer to an example which recently was quoted here, and I mean the eight hundred inmates in a prison in America who were infected with malaria. I don’t want to refer to this example in order to justify the experiments which are under indictment here, but I want to express that the question of the importance of an experiment is, and remains, basically of decisive importance. Even there a certain number of fatalities had to be expected from the start when infecting eight hundred people with malaria.

The voluntary attitude which an inmate adopts and with which an inmate makes himself available is a relatively voluntary agreement. I don’t think it would be the same if one were to receive a voluntary agreement from people who are present here. One has to consider the nature of the voluntary agreement. In my opinion, this round figure of eight hundred speaks against the voluntary agreement of all. I would assume that if it was seven hundred and thirty-five or seven hundred and forty, it would be different, but the round figure of eight hundred seems to indicate that there was a certain order for the experiment before the beginning of the experiment, and these experiments, too, were directed from the point of view of a superior state interest, and this superior state interest, at the same time, takes over the responsibility for the result of the experiment with reference to the experimental subject. For responsibility in a medical sense cannot be assumed at all since even a negative series of experiments speaks against the urgency and necessity of these experiments; and particularly when answering the question about voluntary or involuntary, dangerous or nondangerous natures, it is very difficult and almost impossible to say basically with reference to experiments that experiments on human beings, taking all these things into consideration, are a crime or are not a crime. The question can only be judged when over and above the expected result experiments are still continued. If a result has been established and further experiments on human beings are then carried out, they are not important, and the experiment which is not important is only a dilettante experiment. In that case I would from the start assume the word “criminal,” but when dealing with important experiments, it is necessary to take into consideration all the circumstances which played a part at that time; that is to say, the important experiments, from the moment a result is achieved, become unimportant. From that moment on, in my opinion, the experiment is criminal. Therefore, that when speaking about human experiments at all, one must put the results at the disposal of the state—not only to one state but internationally—so that experiments which are carried out in Russia and which had shown results would not be continued in other countries.

With reference to freezing experiments, I can only say that in a certain form, without saying “criminal” or “not criminal,” they showed their value. The indication for that is that the results in the American Air Force were considered as something extraordinary and helped the American Air Force to gain years, and I think that these experiments would also be of use in mines, where a number of fatalities occur because of freezing. If you consider the freezing experiments in that light, the victims in effect are tragic and are to be regretted, but with reference to subsequent periods these victims are a real sacrifice, for hundreds, or maybe thousands of people might save or prolong their lives because of it.

* * * * *

Q. Dr. Brandt, is it not true that in any military organization, even one of an authoritarian state, there comes a point beyond which the officer receiving an order subjects himself to individual responsibility, at least in the eyes of civilized society, for carrying out any military orders, particularly if the order is unlawful or transcends the limit of extreme military necessity?

A. There was a general law stating that an officer does not have to carry out an order which he realizes is a crime, but the question with reference to these various experiments is whether the man concerned can realize that what he is doing is a crime. If he can realize it, then, in my opinion, he cannot comply with the order.

* * * * *

EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE[157]

_CROSS-EXAMINATION_

* * * * *

MR. MCHANEY: And you suggested and asked him [defendant Mrugowsky] to carry out experiments with Copenhagen vaccine in the typhus experiments in Buchenwald, didn’t you?

DEFENDANT ROSE: I was asking whether there was still a possibility of carrying out such a series of experiments. That is quite understandable, considering the situation, because one can see from my report of 29 May 1943, that this seemed to constitute a considerable advance on the experiments already made on animals. I knew that such experiments had been carried out earlier, although I basically objected to these experiments. This institution had been set up in Germany and was approved by the state and covered by the state. At that moment I was in a position which might correspond to that of a lawyer who is, perhaps, a basic opponent of capital punishment. On occasions when he is dealing with leading members of the government or with lawyers during public congresses or meetings, he will do everything in his power to maintain his opinion on the subject and have it put into effect. If, however, he does not succeed, he stays in his profession and in his environment in spite of this. Under certain circumstances he may perhaps even be forced to pronounce such a death sentence himself, although he is basically an opponent of the principle. Of course, it does not go as far as this in my case. I am only in touch with people of whom I assume that they somehow are included in the official channels of such an institution, which I disapprove of basically, and which I want to see removed.

Q. Professor, six persons died in this experiment with the Copenhagen vaccine, didn’t they?

A. Yes. They were six people who were furnished by the Reich Criminal Police Office through ordinary channels as determined by competent agencies.

* * * * *

-----

[149] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[150] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.

[151] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11220-11244.

[152] Defendant in case of United States _vs._ Ernst von Weizsaecker, et al. See Vols. XII, XIII, XIV.

[153] United States _vs._ Josef Altstoetter, et al. See Vol. III.

[154] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 10922-10941.

[155] Trial of the Major War Criminals, vol. XVII, pp. 458-494, Nuremberg, 1948.

[156] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. 1947, pp. 2301-2661.

[157] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 Apr. 1947, pp. 6081-6484.

D. Status of Occupied Poland Under International Law

a. Introduction

The defense argued that Poland lost its sovereignty as a result of the complete occupation of Polish territory and the cessation of Polish military resistance in September 1939 and held that in consequence Germany could treat Polish nationals according to German law. An extract from the closing statement of the prosecution on this point appears on page 975. The argument, that international law concerning belligerent occupation was thus not applicable to the treatment of Polish nationals, appears in the extracts from the final plea for defendant Gebhardt on pages 976 to 979.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[158]

* * * * *

In the case of some of the defendants, and this is especially true with respect to Gebhardt, Fischer, and Oberheuser in connection with the sulfanilamide experiments, it is to be expected that the argument will be made that crimes against Polish, and perhaps also Czech nationals, do not constitute war crimes within the meaning of Control Council Law No. 10. This argument is based upon the proposition that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the German Reich, and therefore Germany had the authority to deal with the occupied countries as though they were part of Germany. Thus, the defense placed in evidence the Russo-German Boundary and Friendship Treaty of 28 September 1939 as well as certain German decrees concerning the administration of occupied Poland. (_Gebhardt 14, Gebhardt Ex. 13_; _Gebhardt 15, Gebhardt Ex. 14_; _Gebhardt 16, Gebhardt Ex. 15_.) Without stopping to argue the point that that part of Poland administered by the so-called General Government, from which the Polish subjects for the sulfanilamide experiments came, was never incorporated into the Reich, it will be sufficient to point out that this argument was disposed of by the International Military Tribunal. In its judgment, the following was said:[159]

“In the view of the Tribunal, it is unnecessary in this case to
decide whether this doctrine of subjugation, dependent as it is
upon military conquest, has any application where the
subjugation is the result of the crime of aggressive war. The
doctrine was never considered to be applicable so long as there
was an army in the field attempting to restore the occupied
countries to their true owners, and in this case, therefore, the
doctrine could not apply to any territories occupied after 1
September 1939.”

The argument also has no validity with respect to Czech nationals. The International Military Tribunal said that:

“As to war crimes committed in Bohemia and Moravia, it is a
sufficient answer that these territories were never added to the
Reich, but a mere protectorate was established over them.”[160]

* * * * *

c. Selection from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
GEBHARDT_[161]

* * * * *

_The Legal Status of the Experimental Subjects_

“Inmates of the Ravensbrueck concentration camp who had been sentenced to death by German courts martial in the General Government as members of the Polish Resistance Movement were employed as experimental subjects (in the sulfanilamide experiments).” The witnesses questioned in Court and all experimental subjects from whom the prosecution has submitted affidavits have openly professed their membership of the Resistance Movement and it must be added that some of them exercised relatively important functions in the Resistance Movement. If the legal status of the experimental subjects at the time of their activity in the Resistance Movement is examined, the result will be as follows:

LEGAL STATUS OF POLAND

The former Polish State ceased to exist as an independent subject from the point of view of international law at the latest on 28 September 1939. After the entire area of the former Polish State had been occupied by the German armies and the troops of the Soviet Union, and the Polish Government had gone into Romanian territory under pressure of the invasion of the Red Army on 17 September 1939, the two occupational powers decided to carry out a plan previously agreed upon which was to settle all matters concerning the territory of the former Polish State without interference by any other powers. This was brought about by the German-Soviet Boundary and Friendship Pact of 28 September 1939. (_Gebhardt 14, Gebhardt Ex. 13._) I refer to the contents of the pact for particulars. It was on this day, at the very latest, that Poland ceased to exist as a sovereign state and as bearer of rights and duties. Due to war, the former Polish State ceased to exist as a state and therewith as a subject from the point of view of international law.

The territory of the former Polish State, insofar as it fell within the sphere of Soviet interests, became part of the U. S. S. R., to which it still belongs today.

The Polish territory, which fell into the German sphere of interests and which is designated in detail in the Supplementary Protocol to the German-Soviet Boundary and Friendship Pact, became either part of the German Reich or—and this concerned the larger part of the area—was made into an independent borderland of the German Reich under the designation General Government. The constitutional laws governing this territory were based on the Decree for the Administration of the Occupied Polish Territory issued on 12 October 1939 by the Fuehrer and Reich Chancellor. I have presented the decree to the Tribunal as Document Gebhardt 15, Gebhardt Exhibit 14. Article 4 of this decree states that Polish law was to continue to be valid insofar as it was not at variance with the taking over of the administration by the German Reich. Article 5 gives the Governor General the right to issue laws by ordinance for the territory under his administration.

Corresponding to the generally acknowledged principles of international law the ordinances issued by the Governor General were binding for the population of this territory. This is especially true of the Ordinance for Combating Deeds of Violence in the General Government, which was issued on 31 October 1939 (Ordinance Gazette for the General Government, page 10), and which also laid the foundation for the competence of the courts martial. This ordinance had become necessary because the military government, which had been active until 26 October 1939, ceased to exist when the Fuehrer Decree of 12 October 1939 became valid.

In this connection, the following reply must be made to the objection of the prosecution in their final plea on the morning of the 14th.

First: No Polish Government was in existence when these experimental subjects were working for the Resistance Movement in 1940 and 1941. The Polish Government had ceased to exist as an independent subject under international law. The government in exile in London under General Sikorski and the government in Lublin were only subsequently recognized by the Western Allies.

Second: When the experimental subjects were working for the Resistance Movement in 1940, no Polish Army in combat existed.

Third: The prosecution seems to have endeavored to express that this Military Tribunal should not primarily apply territorial penal law but the principles of international law. For this very reason the prosecution pointed out that the jurisdiction and the judicial authority within the General Government were the consequence of an aggressive war and could not, therefore, be legally recognized. This concept does not apply. It must first be pointed out that the principles of international law, which have the function to regulate legal issues during war, make no distinction between an aggressive war, a defensive war, or a justified war. This is particularly stated in the Fourth Hague Convention of 1907, the so-called Hague Land Warfare Convention.

The objection of the prosecution is not justified for another reason. The evidence before the IMT showed that the attack on Poland was carried out by Germany in at least the same manner as it was carried out by the U.S.S.R., and that this becomes quite evident from the contents of the German-Soviet secret treaty of 23 August 1939. Nevertheless the U.S.A. did not hesitate to recognize the territorial claims made by the U.S.S.R. in the area of the former Polish State. This recognition took place _de facto_ as well as _de jure_ during the Yalta Conference in February 1945 and the Potsdam Conference on 2 August 1945.

The prosecution cannot therefore object today to this state of affairs as far as the legal issues arising from this attack are concerned.

The Ordinance for Combating Acts of Violence in the General Government and the introduction of the courts martial connected with it would, by the way, have been permissible, even if though the former Polish State had not ceased to exist as a subject in the realm of international law. Military occupation of foreign states (_occupatio bellica_), too, gives the occupying power the right to take all the measures necessary for the maintenance of order and safety. It is a generally acknowledged legal conception that in this case the occupying power takes over the power of the conquered state, not as its deputy, but rather by authority of its own laws guaranteed by international law. The right is expressly acknowledged in the third section of the Hague Convention for Land Warfare [Section III, Annex to the Convention]. There can be no doubt that the introduction of courts martial is one of these rights of the occupying power. In fact it seems inconceivable that an occupying power should not be allowed to take measures for the effective combating of a resistance movement, whose sole and openly admitted purpose it was to undermine and destroy the authority of the occupying power and the safety of the occupation troops. The right to do this can be contested even less in our case, since with the outbreak of the German-Soviet war, the territory of the former General Government became the largest military transit area which has ever existed in the history of war. The methods by which the Polish Resistance Movement tried to attain its goals do not need to be examined here in detail. It is sufficient to point out that the Resistance Movement was in a position to interfere to a considerable extent with German Army reinforcements against the Red Army; this interference took the form of blasting of bridges, transmission of important military information, etc. The Polish women used for the sulfanilamide experiments were members of this Resistance Movement and they supported it wherever they could. However much we respect the courage and patriotism of these women, we cannot refrain from emphasizing the fact that they violated laws which at that time were binding for them. This violation gave the occupation power the right to impose adequate punishment upon them. It seems unthinkable that the members of a resistance movement such as the Polish one would not have been sentenced to death during the war for their resistance activities by any other state which found itself in a position similar to that of Germany at that time. Latest developments show that the occupation powers in Germany now do not hesitate to impose the most severe penalties in similar cases.

For example, the American Military Government for Germany in its Ordinance No. 1, which was issued to insure the safety of the Allied Armed Forces and to reestablish public order in the territory occupied by them, lists, among others, the following acts as crimes punishable by death:

Communication of information which may be dangerous to the
security or property of the Allied Forces, or unauthorized
possession of such information without promptly reporting it;
and unauthorized communication by code or cipher;

Interference with transportation or communication or the
operation of any public service or utility;

Any other violation of the laws of war or act in aid of the
enemy or endangering the security of the Allied Forces.

A comparison of these regulations with the contents of the court martial regulations of the Governor General for the Occupied Polish Territories, presented in Document Book II for the defendant Gebhardt, shows clearly that here generally the same facts were declared to be punishable with the death sentence.

In order to exclude any doubts with regard to the legal status of the experimental subjects, it may be pointed out in conclusion that the members of the Polish Resistance Movements, at least when the prisoners belonged to these movements, did not fulfill the conditions of Article I of the Hague Convention for Land Warfare of 1907 [Section I, Chapter I, Annex to the Convention] concerning militia and voluntary corps not affiliated with the army and having a certain military organization. The Polish Resistance Movement at that time (1) had no leader who was ostensibly at its head and responsible for the conduct of the members; (2) it wore no particular badge recognizable from a distance; (3) it did not wear its arms openly; and finally, (4) in its conduct of war it disregarded the laws and practices of war. In view of these facts the members of the Resistance Movement could not have been treated as prisoners of war even if at that time a Polish Army had still been in the field. In view of the fact that the prisoners in question were women serving in the communications and espionage branches of the Resistance Movement, this possibility was eliminated from the very beginning.

* * * * *

-----

[158] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[159] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.

[160] [Ibid.]

[161] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.

E. Voluntary Participation of Experimental Subjects

a. Introduction

There was considerable contention in the case as to whether an inmate of a German concentration camp could give his voluntary consent to participate in medical experiments. The prosecution argumentation on this point appears in the opening statement on pages 27-74 and in the closing statement. The applicable extract from the closing statement of the prosecution appears below on pages 980 to 983. Selections from the defense argumentation on this point have been taken from the closing brief for the defendant Karl Brandt and from the final plea for the defendant Ruff. These appear below on pages 983 to 992. The following selections from the testimony have been taken from the evidence on this point: Extracts from the direct examination of the prosecution witness Dr. Eugen Kogon, and extracts from the cross-examination and redirect examination of the prosecution’s expert witness Dr. Andrew C. Ivy. These extracts appear below on pages 993 to 1004.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[162]

* * * * *

* * * It is the most fundamental tenet of medical ethics and human decency that the subjects volunteer for the experiment after being informed of its nature and hazards. This is a clear dividing line between the criminal and what may be noncriminal. If the experimental subjects cannot be said to have volunteered, then the inquiry need proceed no further. Such is the simplicity of this case.

What then is a volunteer? If one has a fertile imagination, suppositious cases might be put which would require a somewhat refined judgment. No such problem faces this Tribunal. The proof is overwhelming that there was never the slightest pretext of using volunteers. It was for the very reason that volunteers could not be expected to undergo the murderous experiments which are the subject of this trial that these defendants turned to the inexhaustible pool of miserable and oppressed prisoners in the concentration camps. Can anyone seriously believe that Poles, Jews, and Russians, or even Germans, voluntarily submitted themselves to the tortures of the decompression chamber and freezing basin in Dachau, the poison gas chamber in Natzweiler, or the sterilization X-ray machines of Auschwitz? Is it to be held that the Polish girls in Ravensbrueck gave their unfettered consent to be mutilated and killed for the glory of the Third Reich? Was the miserable gypsy who assaulted the defendant Beiglboeck in this very courtroom a voluntary participant in the sea-water experiments? Did the hundreds of victims of the murderous typhus stations in Buchenwald and Natzweiler by any stretch of the imagination consent to those experiments? The preponderance of the proof leaves no doubt whatever as to the answer to these questions. The testimony of experimental subjects, eyewitnesses, and the documents of the defendant’s own making, establish beyond a shadow of a doubt that these experimental subjects were nonvolunteers in every sense of the word.

This fact is not seriously denied by the defendants. Most of them who performed the experiments themselves have admitted that they never so much as asked the subjects whether they were volunteering for the experiments. As to the legal and moral necessity for consent, the defendants pay theoretical lip service, while at the same time leaving the back door ajar for a hasty retreat. Thus, it is said that the totalitarian “State” assumed the responsibility for the designation of the experimental subjects, and under such circumstances the men who planned, ordered, performed, or otherwise participated in the experiment cannot be held criminally responsible even though nonvolunteers were tortured and killed as a result. This was perhaps brought out most clearly as a result of questions put to the defendant Karl Brandt by the Tribunal. When asked his view of an experiment, which was assumed to have been of highest military necessity and of an involuntary character with resultant deaths, Brandt replied:

“In this case I am of the opinion that, considering the
circumstances of the situation of the war, this state
institution, which has laid down the importance of the interest
of the state, at the same time takes the responsibility away
from the physician if such an experiment ends fatally, and such
responsibility must then be borne by the state.” (_Tr. p.
2567._)

Further questioning elicited the opinion that the only man possibly responsible in this suppositious case was Himmler, who had the power of life and death over concentration camp inmates, even though the experiment may have been ordered, for example, by the Chief of the Medical Service of the Luftwaffe and executed by doctors subordinated to him. Most of the other defendants took a similar position, that they had no responsibility in the selection of the experimental subjects.

This defense is, in the view of the prosecution, completely spurious. The use of involuntary subjects in a medical experiment is a crime, and if it results in death it is the crime of murder. Any party to the experiment is guilty of murder and that guilt cannot be escaped by having a third person supply the victims. The person planning, ordering, supporting, or executing the experiment is under a duty, both moral and legal, to see to it that the experiment is properly performed. This duty cannot be delegated. It is surely incumbent on the doctor performing the experiment to satisfy himself that the subjects volunteered after having been informed of the nature and hazards of the experiment. If they are not volunteers, it is his duty to report to his superiors and discontinue the experiment. These defendants have competed with each other in feigning complete ignorance about the consent of the experimental victims. They knew, as the evidence proves, that the miserable inmates did not volunteer to be tortured and killed. But even assuming the impossible, that they did not know, it is their damnation not their exoneration. Knowledge could have been obtained by the simple expedient of asking the subjects. The duty of inquiry could not be clearer and cannot be avoided by such lame excuses as “I understood they were volunteers,” or, “Himmler assured me they were volunteers.”

In this connection, it should never be lost sight of that these experiments were performed in concentration camps on concentration camp inmates. However little, some of these defendants say they knew of the lawless jungles which were concentration camps, where violent death, torture, and starvation made up the daily life of the inmates, they at least knew that they were places of terror where all persons opposed to the Nazi government were imprisoned without trial, where Jews and Poles and other so-called “racial inferiors” were incarcerated for no crime whatever, unless their race or religion be a crime. These simple facts were known during the war to people all over the world. How much greater then was the duty of these defendants to determine very carefully the voluntary character of these experimental subjects who were so conveniently available. True it is that these defendants are not charged with responsibility for the manifold complex of crimes which made up the concentration camp system. But it cannot be held that they could enter the gates of the Inferno and say in effect: “Bring forward the subjects. I see no evil; I hear no evil; I speak no evil.” They asked no questions. They did not inquire of the inmates as to such details as consent, nationality, whether a trial had been held, what crime had been committed, and the like. They did not because they knew that the wretched inmates did not volunteer for their experiments and were not expected to volunteer. They embraced the Nazi doctrines and the Nazi way of life. The things these defendants did were the result of the noxious merger of German militarism and Nazi racial objectives. When, in the face of a critical shortage of typhus vaccines to protect the Wehrmacht in its Eastern invasions, Handloser and his cohorts decided that animal experimentation was too slow, the inmates of Buchenwald were sacrificed by the hundreds to test new vaccines. When Schroeder wanted to determine the limit of human tolerance of sea-water, he trod the path well-worn by the Luftwaffe to Dachau and got forty gypsies. These defendants with their eyes open used the oppressed and persecuted victims of the Nazi regime to wring from their wretched and unwilling bodies a drop of scientific information at a cost of death, torture, mutilation, and permanent disability. For these palpable crimes justice demands stern retribution.

* * * * *

c. Selections from the Argumentation of the Defense

_EXTRACTS FROM THE CLOSING BRIEF FOR
DEFENDANT KARL BRANDT_

* * * * *

_Voluntary Participation_

Experiments on persons who offer themselves voluntarily have always been considered admissible. In literary works care is always taken _to note this voluntariness_; where it is not mentioned, one may conclude that it was nonexistent.

The interest taken in the voluntariness of the person experimented upon has various reasons.

First of all the compulsory experiment—in contrast to the voluntary experiment—means an additional, very heavy mental strain, for the experimenter since the health and life of a human being may be at stake and the future existence of the person experimented upon may be imperiled.

But the experimenter has not only a purely human interest in having the person to be experimented upon offer himself with a certain voluntariness; in many cases he must absolutely depend on the _cooperation of the person experimented on_; he needs truthful information about observations made during the experiment, which cannot otherwise be carried out properly. Compare for instance the high-altitude and sea-water experiments.

Finally there may exist the wish to be protected against _claims for damages_ and to prevent the _uncovering_ of legal provisions, as well as to guard against the possible _political odium_ that might result from having given orders for a forced experiment.

However, one look at the literature shows that the notion of _voluntariness_ is _strongly suspect_, and every critical reader will in most cases associate himself with such suspicions.

The subjection to an experiment which is dangerous or even only painful or temporarily onerous must be based on a special motive.

_Ethical reasons_ alone can give rise to voluntariness strictly speaking only in the case of the researcher himself, that is in self-experiments, and in the case of persons who for ethical reasons consciously wish to support by their cooperation the aims of the researcher.

* * * * *

However, if a declaration of voluntariness is made for reasons of _inexperience_, _thoughtlessness_, or _distress_, then it is unethical. Into this category fall cases where persons are induced to undergo experiments through promise of money or other advantages, while they do not foresee the meaning of the experiments. These are the weak, who, unprotected, are made to serve the interests of humanity. Compare with this the case of the use of immigrants for experiments. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._) The _category_ here of particular interest is that of _prisoners_ who offer themselves voluntarily.

First of all, one cannot assume that the _ethical level in a penitentiary_ is so high above that of free men that here a great number of prisoners would offer themselves for participation in an experiment voluntarily only for purely ethical reasons. On the contrary, one can say that _all prisoners_ are living under a certain _compulsion_. They expect from their participation in the experiment an improvement of their position or fear a worsening in case of refusal. Even though the regulations about the treatment of prisoners may be fixed, in practice there remains in this particular world a very wide scope for the punishment of prisoners with measures which, as experience shows, may hit the prisoner much more severely and more grievously than the sentence of the judge itself.

If the motive of the prisoner for his “voluntary offer” is merely a general _and vague hope_, in any direction, then there is no genuine declaration of voluntariness, but the consent is merely the off-shoot of his condition of constraint.

Two things have to be considered with regard to the prisoner’s declaration of voluntary consent; the _risk_ which he undergoes and the _advantage_ that is offered him. One can only give one’s consent to something of which one knows the full _meaning_ and _importance_. The prisoner must therefore have been fully informed of the possible consequences. Here only lies the real problem of “voluntariness.” It is not enough that the person to be experimented upon knows that, for instance, a malaria experiment is to be made; he must also know just how the particular person is to be used. The first easy series of experiments cannot be compared with the daring final experiments. Who is going to offer himself for the ultimate experiment necessary if the other persons to be experimented on get off more lightly? What was the nature of the consent?

Professor Ivy as expert witness has said nothing about this problem.

As a matter of fact a person to be experimented on can hardly estimate the risk, and the recruiting officer will not be inclined to give a frightful description of what may happen. Professor Ivy, who has recruited volunteers himself, does not consider experiments to be an evil. If you add that the “volunteer prisoner” has to forego all claims in case of injury to his health, then the consent of the prisoner cannot be considered as valid.

On the other hand the prisoner must know the advantage promised him as his _compensation_ must be in suitable relation to the severity of the experiment and the reward must be assured to the prisoner. If the advantage is strikingly disproportionate to the risk and given as an act of grace without claim after the conclusion of the experiment, then there is no voluntary experiment; it remains a forced experiment.

Only if both basic conditions are fully met will it be possible for the prisoner to make a free decision. He may then allow his possible death to be included in the bargain in order to gain the chance of shortening the time of his imprisonment by years.

Such a case is depicted in the well known pellagra experiments, where with the collaboration of attorneys as defense counsellors, the conditions were agreed upon by the prison administration. (_Karl Brandt 47, Karl Brandt Ex. 54_; _Becker-Freyseng 60a, Becker-Freyseng Ex. 59_.)

This is the _classical case of a voluntary experiment in prison_. It will not always be possible or necessary to fix the advantage in the same manner; the official promise of the prison institute may be sufficient to exclude an arbitrary denial of the promise. Examples for that are the leprosy experiments on a person condemned to death, and the continuous experiments in the penitentiary Bilibid. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)

These experiments must, be considered admissible as _experiments where a chance is given_.

The examples from medical literature, however, show that these general conditions for voluntariness were not always fulfilled. So we refer only to the experiments in the penitentiary San Quentin with streptococci on 25 convicts in 1946. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)

Accordingly, even experiments carried out on persons without their consent must be considered admissible.

_Involuntariness_

There are some examples of experiments carried out abroad which were carried out as _compulsory experiments_ on prisoners _without_ their _consent_. As an example may be mentioned the poisoning experiment carried out in _Manila_ on 11 prisoners sentenced to death. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._) The persons subjected to experiments were executed immediately after as part of the experiment. The _malaria experiment_ carried out on 800 prisoners has to be mentioned too. According to an explicit statement in the press, no advantages were granted them in return. (_Karl Brandt 1, Karl Brandt Ex. 1._)

The method described by the witness Ivy was introduced later on as a practice of the administration.

It is evident that in these cases no declarations of voluntariness could have been made because no criminal who is sentenced to death will make himself available first for experiments _where he has no chance_, unless there is some hope of a favor shown to him. But in the case of poisoning experiments there was _no question of commutation of the sentence_ because the purpose of the experiment was the study of the effect of poison on corpses. Thus, execution was included as part of the experiment.

Concerning the malaria experiments the press notice explicitly said that _no privileges of any kind_ were granted, thereby referring to the task of the prisoners, as “social parasites”, to help fight the mosquitoes as equal social parasites.

One must conclude that compulsory experiments are admissible, but one _cannot_ draw the conclusion that the state is authorized to use the prisoners at random for any experiment whatever by way of punishment.

_The gravity of the experiment_ must stand in a _certain proportion_ to the gravity of the crime. The expiation must be such as can be expected. This very idea of the reasonableness of the demand is expressed in the malaria experiment mentioned where reference is made to the socially negative attitude of the persons subjected to experiments, thus applying the idea of _expiation_.

The same fundamental idea might have led to the resolution to use conscientious objectors for the experiments. It seems that here _expiation_ has been demanded from the same point of view of a _socially inimical attitude_. It does not seem unfair if a _conscientious objector_, as a deserter, is subjected to experiments if he adopts this attitude only in wartime and if this attitude helps him to escape behind prison walls, thus withdrawing from dangers which the soldier at the front has to bear for the sake of the community. For the soldier, this danger may consist in a dangerous epidemic disease, to which he is exposed in wartime especially.

The idea of compulsory experiments in the sense of an experiment of expiation has been proposed as an _expiation measure_ with regard _to prisoners of war and political prisoners_ and has not been objected to even by the public. So the less ethically orientated opinion of the day frequently expresses the view that experiments on criminals should be carried out for the purpose of expiation.

Even in the press these opinions have their representatives. So among others a reference appeared in the London paper “The People” of 3 March 1946 (_Karl Brandt 114_[163]) There the following is said: “People believe that all these men (the defendants at the International Military Tribunal) will die. It is the opinion of many that they ought to have died months ago and ought to have been shot three days after arrest by court-martial sentence. Others are of the opinion that they should _expiate their crimes_ by being subjected to cancer, leprosy, and tuberculosis experiments.”

It is significant in this excerpt that it is a well-known English author, Llewellyn who passes it on, and he does not adopt a disapproving attitude to it.

Accordingly, it can be ascertained that such experiments of expiation on _political opponents, prisoners of war, and civilians_ can be looked upon as _reasonable_ and admissible, if these persons, as convicted _criminals_, are subject to _punishment_ and if the law relating to the serving of sentences permits experiments of that kind.

The _Geneva Convention_ in Article 46 provides for a restriction only insofar as no punishments may be inflicted on prisoners of war apart from those that are admissible for members of the army of one’s own country; the same must be applied to civilians.

In comparison with this, no restrictions exist with regard to the execution of punishment in cases of _criminal_ offenses. Therefore the penal execution law, admissible in each state, can be applied.

If therefore compulsory experiments for expiation can be carried out on an American citizen, they could be applied in the same way to a German prisoner of war, assuming that the latter has been sentenced under penal law. In accordance with this, the same must be admissible in the execution of German penal law if the _foreign prisoner_ has been legally sentenced to punishment.

The foreign criminal is not in a better position than the subject of one’s own country.

The compulsory experiment must have its limits.

Here one must distinguish between responsibility for the _arrangement of the experiment_ and for its _conduct_. In both cases the physician can have a share in it. The _decision for the conduct_ of experiments on human beings can come from two sides, different in character. The demand can result from urgency in the interests of the community and can be vindicated by _the state_. During the war, experiments can be demanded by the _armed forces_ in case of epidemics to be expected, such as malaria, typhus, and the like.

On the other hand the suggestion can come from the _research side_ itself, which perceives a possibility of combating an evident state of distress, through the progress of medical science, and also demands experiments for the sake of the community.

The decision concerning the necessity for such experiments is a _decision of usefulness taken by the state_, consequently a _political_ decision, signifying a balancing of expenditure and of success to be expected or hoped for.

There are different kinds of questions which have to be decided; first of all there are economic questions to be solved by the competent authorities; i. e., financial questions, supply of specialists, laboratories and so on.

Responsible for it are offices with means and possibilities available, which can dispose of them according to their own judgment. These offices are divided further according to their special interest in individual special spheres, such as air navigation, _Wehrmacht_, and the like.

_No decisions_ can be made by an authority _without any means at its disposal_; this is valid for instance for the office “Science and Research” of the defendant Karl Brandt, which fulfilled only a recording and coordinating function within certain medical spheres. Evidently the activity of the _Reich Research Council_ was chiefly that of an organ of control and had to eliminate superfluous research during the war by refusal of subsidies in order to help the small number of specialists and material by allotment of priority ratings and financial means. This was the task of the Reich Research Council and in the medical sphere this part of its general regulating activity was very small.

These offices had _no power of decision as to whether experiments on human beings_ could be made or not, and they could not have it. The office which regulated the _infliction of punishment_ and disposed of human beings subjected to experiments was the only office to take decisions. This corresponds to what is known about the conduct of experiments on human beings abroad, where the decision was also taken by administrative offices.

The _authority for the infliction of punishments_, as the authoritative office of the state, makes its _independent_ decision while _politically balancing_ the _necessity_ for arranging experiments in the interests of the community against what can be expected of the condemned. Applied to German conditions during the war it means the following:

If the condemned are under the control of the authorities of justice competent for the execution of sentences, the responsibility rests upon the _Reich Minister of Justice_; if the execution of sentences is carried out by the _Reich Leader SS and the Chief of Police_ in the concentration camps, the latter has to be responsible for it.

In this situation _the responsibility of a physician_ can be of value for a decision only so far as he gives a false _expert opinion_ about the prospects of the experiment.

The government has to make the final decision about the admissibility of experiments on human beings; the government only has to decide whether experiments on human beings are necessary in order to combat dangers and injury to health, as it is responsible for everything pertaining to health. In connection with this compare the regulation of the French Government in 1858 for the purpose of clearing up the question concerning the treatment of secondary syphilis and the experiments made on human beings. (_Karl Brandt 48, Karl Brandt Ex. 55._)