Chapter III: Front Matter (3)

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.

* * * * *

G. Subjection to Medical Experimentation as Substitute
for Penalties

a. Introduction

Several of the defendants argued that medical experiments, alleged as criminal, upon concentration camp inmates were justified because they were a substitute for penalty or punishment previously imposed on the experimental subjects. Counsel for the defendant Gebhardt argued that the experimentation amounted to a complete pardon as sentences of death had been imposed and hence that the experimentation, not always deadly, saved human lives. The prosecution’s argument on this point is illustrated by an extract from the closing statement, set forth on pages 44 to 49. On this general question, selections have been taken from the closing brief for the defendant Karl Brandt and from the final plea of the defendant Gebhardt. These appear below on pages 49 to 56. The following selections from the evidence appear in pages 56 to 61: extract from the direct examination of the defendant Mrugowsky; cross-examination of the prosecution’s expert witness, Dr. Andrew C. Ivy.

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[9]

* * * * *

Another of the rather common defenses urged by the defendants is that the experimental subjects were criminals condemned to death who, provided they survived the experiment, were rewarded by commutation of their sentence to life imprisonment in a concentration camp. For one who has even the slightest knowledge of the conditions in concentration camps and the life expectancy of an average inmate, this alleged defense assumes the aspect of a ghastly joke. We need only recall the remark made by one of the women used by Rascher to reward his frozen victims in Dachau, who when asked by him why she had volunteered for the camp brothel, replied: “rather half a year in a brothel than half a year in a concentration camp.” But the defects in this spurious defense run much deeper. Concentration camps were not ordinary penal institutions, such as are known in other countries, for the commitment of persons convicted of crimes by courts. The very purpose of concentration camps was the oppression and persecution of persons who were considered undesirable by the Nazi regime on racial, political, and religious grounds. Hundreds of thousands of victims were confined to concentration camps because they were simply Jews, Slavs, or gypsies, Free Masons, Social Democrats, or Communists. They were not tried for any offense and sentenced by a court, not even a Nazi court. They were imprisoned on the basis of “protective custody orders” issued by the RSHA. Tens of thousands were condemned to death on the single order of Himmler, who, as Gebhardt put it so well, “had the power to execute thousands of people by a stroke of his pen.” (_Tr. p. 4025._) There were, indeed, a relatively small group of inmates who might be classed as ordinary criminals. These were men who had served out their sentences in an ordinary prison and then were committed to concentration camps for still further detention. A memorandum of 18 September 1942 by Thierack, the Minister of Justice, concerning a conversation with Himmler, tells us the fate of those unfortunates:

“The delivery of anti-social elements from the execution of
their sentence to the Reich Leader SS to be worked to death.
Persons under protective arrest, Jews, gypsies, Russians and
Ukrainians, Poles with more than 3-year sentences, Czechs and
Germans with more than 8-year sentences, according to the
decision of the Reich Minister for Justice.” (_654-PS, Pros. Ex.
562._)

The proof in this case has demonstrated beyond all doubt that so-called criminals sentenced to death were very rarely used in any of the experiments. True it is that Himmler said prisoners condemned to death should be used in those high-altitude experiments where the long-continued activity of the heart after death was observed by the experimenters. He was generous enough to say that if such persons could be brought back to life, then they were to be “pardoned” to concentration camp for life. But even 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.”[10]

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 I, p. 151_; _Reichsgesetzblatt 1939,