Chapter IV: Part I: , p. 1457.) Moreover, there is no proof that any of the (1)

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 death sentences commuted to some lesser degree of punishment, provided they survived the experiments. This was no bargain reached with the experimental subjects; their wishes were not consulted in the matter. It was, according to Gebhardt, left to the good faith of someone unnamed to see to it that the death sentences were not carried out on the survivors of the experiments. Certainly Gebhardt, Fischer, and Oberheuser assumed no responsibility or even interest in that regard.

It should be pointed out that the proof shows that the experimental subjects who testified before this Tribunal were never so much as afforded trial; they had no opportunity to defend themselves against whatever crimes they were said to have committed. They were simply arrested and interrogated by the Gestapo in Poland and sent to the concentration camp. They had never so much as been informed that they had been _marked for_, not sentenced to, death. Article 30 of the Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention, specifically provides that even a spy “shall not be punished without previous trial”.

Gebhardt would have the Tribunal believe that _but for_ the experiments all these Polish girls would be dead; that he preserved the evidence which was used against him. Nothing could be further from the truth. There is no proof in the record that these women would have been executed if they had not undergone the experiments. The witness Maczka is living proof of the contrary. She was arrested for resistance activities on 11 September 1941 and shipped to Ravensbrueck on 13 September. She was not an experimental subject yet she lives today. Substantially all of the Polish experimental subjects arrived in Ravensbrueck in September 1941. These girls had not been executed by August 1942 when the experiments began. There were some 700 Polish girls in that transport. There is no evidence that a substantial number were ever executed even though most of them were not experimented on.

The proof submitted by the prosecution has shown beyond controversy that these Polish women _could not have been legally executed_. The right to grant pardons in cases of death sentences was exclusively vested in Hitler by a decree of 1 February 1935. On 2 May 1935, Hitler delegated the right to make negative decisions on pardon applications to the Reich Minister of Justice. On 30 January 1940, Hitler delegated to the Governor General for the occupied Polish territories the authority to grant and deny pardons for the occupied Polish territories. By edict dated 8 March 1940, the Governor General of occupied Poland ordered that—

“The execution of a death sentence promulgated by a regular
court, a special court, or a police court martial, shall take
place only when my decision has been issued not to make use of
my right to pardon.” (_NO-3073, Pros. Ex. 534._)

Thus, even though we assume _arguendo_, that the experimental subjects had all committed substantial crimes, that they were all properly tried by a duly constituted court of law, and that they were legally sentenced to death, it is still clear from these decrees that these women could not have been legally executed until such time as the Governor General of occupied Poland had decided in each case not to make use of his pardon right. There has been no proof that the Governor General ever acted with respect to pardoning the Polish women used in the experiments, or, for that matter, any substantial number of those not used in the experiments. The only reason these 700 Polish women were transported from Warsaw and Lublin to Ravensbrueck, in the first place, was because the Governor General had not approved their execution. Otherwise they would have been immediately executed in Poland. At the very least, these women were entitled to remain unmolested so long as the Governor General took no action. He may never have acted or, when he did, he may have acted favorably on the pardon. Who is to say that the majority of these 700 women did not live through the war even though they did not undergo the experiments? Certainly it was incumbent on the defense to prove the contrary by a preponderance of the evidence. This it did not do by any evidence.

The defendants Gebhardt, Fischer, and Oberheuser certainly cannot claim that they believed in good faith that the Polish women could have been legally executed. Even the camp doctor, Schiedlausky, knew that the Governor General had to approve each execution. Moreover, the large number of 700 women being sentenced to death at this early stage of the war was enough to put any reasonable person on notice that something was wrong.

Additionally, the uncontroverted evidence proves that survival of the experiments was no guarantee whatever of avoiding execution in any event. At least six of the experimental subjects were proved to have been executed after having survived the experiments. It was not a question of the experiment _or_ execution but rather the experiments _and_ execution. Indeed, in February 1945, an effort was made to execute all of the experimental subjects but, because of confusion in the camp due to the war situation, the experimental subjects were able to obtain different identification numbers and so avoid detection.

But even if one takes the case of the defense at its face value, the Tribunal is in effect asked to rule that it is legal for military doctors of a nation at war to experiment on political prisoners of an occupied country who are condemned to death, to experiment on them in such a way that they may suffer death, excrutiating pain, mutilation, and permanent disability, all this without their consent and in direct aid of the military potential of their enemy. There would, of course, be no valid reason for limiting such a decision to civilian prisoners; the experiments would certainly have been no worse had they been performed on Polish or American prisoners of war. It is impossible to consider seriously this ghoulish ruling being sought for by the defense.

c. Selections from the Argumentation of the Defense

_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT
KARL BRANDT_

* * * * *

_The Medical Experiments as Substitute for Penalty_[11]

The indictment embraces certain medical experiments, which are called war crimes and crimes against humanity. According to paragraphs 10 and 15 of the indictment, these experiments are designated as crimes, as a violation of the general principles of criminal law as evolved from the penal law of all civilized nations, as well as violations of the national penal laws of the countries in which such crimes were committed. An indication of their punishable character was seen in the fact that the experiments were carried out _without the consent of the persons experimented upon_.

We must examine whether this _consent_ of the person subjected to experiments is always necessary or whether it can be replaced _by an order of the state_ through the penal administration, and further, if the same law applies to the execution of sentences on foreigners. If consent to the human experiment by the person experimented on can be replaced by an order of the state, then the person responsible for the experiment cannot be punished in cases where the experiments were carried out through the _official penal administration in accordance with the order_.

No _legal regulations_ regarding the question of admissibility of medical experiments in civilized countries are _known_. However, it is a fact that such experiments have been carried out to a greater or lesser extent within the memory of man in all countries and up till now have remained unopposed. But with the development of medical knowledge and modern methods of research, experiments on human beings have increased considerably. Today, when research, to solve its problems and meet its challenges, has advanced into the most widely differentiated spheres, they are considered absolutely necessary. Accordingly, human experiments will continue to increase with the progress of science and the _problem_ that this trial has raised will always be _urgent_.

Moreover, reference is made to the opinion of the Washington anatomist, E. V. Cowdry, on the necessity of human experiments in cancer research (_Karl Brandt 50, Karl Brandt Ex. 56_), and the order for human experiments on the part of the British Military Government for Professor McCance in Wuppertal. The knowledge of such experiments on human beings was, as literature shows, at first limited to medical specialist circles and the official authorities concerned. Only in recent times has _the public_ been cautiously informed. (_Becker-Freyseng 60, Becker-Freyseng Ex. 58._) Complete instruction of the public is only necessary so that, in case of an eventual discussion, sound judgment of the actions of the researcher may be possible.

Reference is also made to the remarkable publication on the malaria experiment on 800 prisoners in the United States, published in the widely circulated periodical “Life” (_Karl Brandt 1, Karl Brandt Ex. 1_). The number of the imprisoned persons to be experimented upon was even more than 2,000, according to the radio account submitted.

Repeated reports on such experiments have so far been _received without opposition_ by specialist circles, the authorities, and also the general public. From that can be gathered what in principle is considered permissible and right by competent authorities and the public. The experiments actually carried out are a mirror of the existing laws and one can by way of _legal sociological investigation find the norms of law_ that have validity. This is done where the law is not codified. In the same manner, the International Military Tribunal has derived the existing international law on the basis of its phenomena and the same procedure leads to the determination of the common law. Inasmuch as positive regulations exist in the United States which are contradictory to the law derived from the phenomena, these legal regulations must be produced or else the _conclusions_ that can be drawn from the experiments must be regarded _in favor of the defendant_ as valid law and an expression of fundamental principles of punishment.

The defense has in the present situation only very limited literature at its disposal for the comprehension and explanation of these legally important facts of the case. However, the little that is available is already so revealing that one must come to the conclusion that medical experiments on human beings are not only admissible on principle, but in addition, that it also does _not_ violate _the basic principles of criminal law_ of civilized nations to carry out _experiments on convicts_.

The _question_ today is not whether experiments on human beings may be carried out but only under what circumstances and _how_ these experiments may be undertaken. Moreover, the prosecution itself has declared that human experiments are admissible on principle.

It is not intended here to go into the experiments which were made on the healthy and the sick and _corpus vile_ at the _time_ when modern research was in _its infancy_ and without participation of government authorities. Insight into those times can be obtained from the book by the Russian physician _Wressajew_ “Confession of a Physician” (_Karl Brandt 48, Karl Brandt Ex. 55_), published about 1900. The book reveals some of the experiments that were then known to medical experts and it follows that the governments did not interfere but in the interest of medical progress permitted such experiments without trying to protect the individual as the person experimented upon. The states then either _considered_ such experiments _compatible with criminal law_, or they acquiesced in the camouflaging of the “voluntariness” of the person experimented upon which was customary in consideration of the law. No governmental intervention as the result of such medical experiments is known.

With the development of health administrations, _governmental supervision_ has been increasingly instituted in all countries and one can consider all that was admitted in medical experiments with the consent of the administration and without opposition as the _sediment of the existing law_. This is true particularly of recent times where governmental direction is on the increase.

Particular attention must be given here to the experiments in state institutes on convicts and those sentenced to death.

* * * * *

_EXTRACTS FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT_[12]

* * * * *

_The Agreement by the Experimental Persons as Legal Justification_

I shall now deal with the individual reasons for the exclusion of injustice and guilt, which according to the result of the evidence preclude the culpability of the defendant’s behavior. I am hereby taking into consideration that the assumption of only one of the reasons for the exclusion of punishment which we shall now deal with suffices to justify the defendant’s behavior and to exonerate him of the offense in the sense of a personal culpability because of his commission or omission. The individual reasons for the exclusion of culpability are discussed without taking into consideration whether the examination of any further similar reasons is superfluous, since the assumption of another reason for the exclusion of culpability suffices to secure the intended success. Evidence has proved that the experiments for testing sulfanilamides were carried out, to begin with, on fifteen professional male criminals who had been sentenced to death. Had they survived the experiments, they would have been granted a pardon therefor. Considering that this part of the experiment is not a subject of the indictment, I need not go into detail about it.

To the second and third group (the sulfanilamide experiments) belonged as experimental subjects members of the Polish Resistance Movement, who, in view of their activity in this illegal movement, had been sentenced to death by German courts martial.

It is a principle of German criminal law that in any case the consent of the offender precludes the illegality of the action. This principle is not only found in German law but is an established part of practically all legal systems. Consequently, we have to examine the question whether the experimental subjects gave their consent to the experiments. When examining the question whether legally effective consent had been given, it will not matter so much whether the experimental subjects expressly declared their consent. However, if generally acknowledged principles are applied, one may presume that they expressed their consent in some obvious manner. It is clear that consent could also have been given tacitly and by conclusive action.

However, it is true that all the female witnesses examined in court testified that they did not give their consent to the experiments. The Tribunal, in evaluating these facts, will have to take into consideration that these witnesses were in a special position at that time, as they also are today. It stands to reason that under these circumstances many things may appear different to them today from the way they actually happened five years ago. It might be true that the experimental subjects did not give their actual consent to these experiments. It might even be true that they were not asked before the experiments whether they consented to the experiments. Nevertheless this would not exclude the possibility that, considering their position at that time and being certain that they could not escape execution in any other way, they nevertheless did consent to the experiments, however tacitly. This supposition would coincide with the fact that, for instance, none of the experimental subjects had ever made any complaint or mentioned to the defendant Fischer, who had regularly changed the dressings, that they did not consent to the experiments.

_The Presumed Consent of the Experimental Subjects as
Legal Justification_

The illegality of an action is excluded not only if the injured person agreed either actually or tacitly, but if there could have been a possible consent. These are the cases where the consent of the injured person could be expected normally, but where for some reason or another such a consent was actually not given. Numerous attempts have been made in legal literature and also in judicial decisions to do justice to this situation which so often occurs in practice. Not all of these theories need to be discussed since the decisive points of view have by now been clarified. At first an attempt was made to settle this question by applying the law referring to unauthorized acting for and on behalf of another person. Serious objections were raised against this transfer of concepts of civil law to criminal law. The criminal idea of consent is to be extended instead to include so-called supposed consent. I understand this as an objective judicial judgment based on probabilities, namely, that the person concerned would have given his consent to the action from his personal point of view if he had fully known and realized the situation. Wherever such a judgment could be applied, it should have the same effect as the judicial finding of an actual consent.

However, other courts and scientists base their reason for justification upon “action for the benefit of the injured person”. If correctly viewed, no actual contradiction to an assumed comment could be seen therein. On the contrary one may say perhaps that this could be considered as an independent argument for justification.

In modern literature and judicial practice, the tendency prevails to combine the two last mentioned viewpoints by demanding them cumulatively. It is not comprehensible, however, why such simultaneous existence of two arguments for justification should be required when each argument in itself is decisive.

A well-known teacher of criminal law in Germany stated the following conception of this idea: “Should the injured person not consent, the action in his behalf and for his benefit is to be considered lawful if his consent could have been expected according to an objective judgment. The primary justifying argument here is not that the injured person has waived his right of decision, but that a positive action was performed for his benefit.”

The practical result, in spite of the theoretical objections raised against such a combination, could hardly be different. For the “objective judicial sentence based on probabilities,” here applied for, which is decisive and upon which the so-called supposed consent would have to be based, will regularly result from an action that under given circumstances is performed for the “benefit of the injured person.”

Applying these general principles to the sulfanilamide experiments, there can hardly be any doubt that the experimental subjects would have agreed if they had been fully aware of their position. The experimental subjects had already been sentenced to death and their participation in these experiments was the only possibility for them to avoid execution. If the Tribunal now tries to assess the probability that the experimental subjects would have agreed to submit to those experiments if they had had full knowledge of the position and the certainty of their eventual execution, there can in my opinion be very little doubt as to the result of this examination.

Nor can there be two opinions regarding the question whether, under circumstances prevailing at that time, the utilization of the prisoners for these experiments was “in the interest of the wounded”.

The evidence has shown that the other members of the Polish Resistance Movement, who were sentenced to death by court martial and who were in the concentration camp at Ravensbrueck awaiting the confirmation of the verdict which was given by the Governor General of the occupied Polish territory, were really shot only after a complicated and protracted procedure. Their participation in these medical experiments was the only chance for them as condemned persons to save their lives. Their participation in these experiments was not only in their interest but it also seems to be inconceivable that the prisoners, if they had been fully aware of their position and had known of the forthcoming execution, would not have given their consent for the experiments.

* * * * *

_The Defendant’s Erroneous Assumption of an Agreement by the
Experimental Subjects_

The evidence has shown that the experimental subjects in Camp Ravensbrueck were not selected by the defendant Karl Gebhardt nor by any of the other defendants, but that the selection was made by the competent agency within the Reich Security Main Office in Berlin or the political department of the Ravensbrueck concentration camp. During the conference at the beginning of July 1942, in which the conditions for the experiments were agreed upon, it was expressly assured that the experimental subjects were persons sentenced to death who were to be pardoned if they survived the experiments.

In view of the fact that the defendant Gebhardt did not himself select the experimental subjects and that, on the other hand, no complaints of any kind on the part of the experimental subjects were ever reported to him,—the defendant Fischer was not in a position to make any personal observations along these lines either—we now must examine the question of the legal position of the defendant Gebhardt if he erroneously assumed the consent of the experimental subjects.

In criminal law it is a generally recognized principle that there can be no question of intentional action if there existed an erroneous assumption of justificatory facts. This principle can also be found in Article 59 of the German Penal Code.[13] But beyond that, this legal principle may be considered one of the principles which is generally valid and which is derived from the general principles of the criminal law of all civilized nations, thus representing an inherent part of our modern conception of criminal law. In application of this principle—and even if the Court does not consider the consent of the experimental subjects as proved and, therefore, does not provide the prerequisites for a legal excuse for objective reasons—we still cannot assume an intentional act on the part of the defendant Gebhardt if he acted under the “erroneous assumption of consent by the experimental subjects.”

_The Erroneous Assumption of Probable Agreement_

The same applies if the defendant Gebhardt erroneously assumed a probable consent of the experimental subjects. We do not mean here an erroneous assumption with regard to the legal suppositions of such a one, but the erroneous assumption of such facts, which, had they existed, would have induced the Tribunal to recognize the “probable consent.” I am referring here to my argumentation for the legal excuse represented by the “probable consent,” which I understand as “an objective opinion concerning the law, based on probability and according to which the person concerned would have consented to the act from his own personal standpoint, if he had been fully aware of the circumstances.” Provided that the defendant Dr. Gebhardt assumed the existence of such circumstances which seems certain according to the evidence, and even if he did so erroneously, the intent and thus the crime in this case would also be excluded according to the generally acknowledged principle.

* * * * *

d. Evidence

_Testimony_
Page
Extract from the testimony of defendant Mrugowsky 56
Extract from the testimony of prosecution expert witness Dr. 60
Andrew C. Ivy

EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[14]

_DIRECT EXAMINATION_

* * * * *

DR. FLEMMING: You know that General Taylor, in his opening speech, said that this experiment with aconitine had not been conducted in order to find an antidote to aconitine but in order to ascertain how long it takes to kill a human being in this manner. Please tell the Tribunal whether this concerned an experiment.

DEFENDANT MRUGOWSKY: This was not an experiment in the actual sense of the word. It was the legal execution of five thieves, and some special facts were to be ascertained during this execution. The details were as follows: One day the chemist of the Reich Criminal Police Office, Dr. Wittmann, came to me. He asked me to attend an execution as the official doctor. As the reason for this request he added that in the General Government in Poland a high official had been injured when he was attacked with a revolver; that the bullet had inflicted only a harmless flesh wound, but nevertheless the person had died after a few hours with symptoms of poisoning. The person who had attacked him had been arrested, and the rest of the ammunition was a hollow ball which contained a crystallized poison. The Chemical Institute of the Reich Criminal Police Office tested this and found that it was aconitine. The ammunition was of Russian origin. There is no aconitine in Germany; it is imported. The question was whether this was the first case of the beginning of poison warfare against Germany. We had been expecting such a method of warfare for some time. For that reason there was not only criminal interest in clearing up this case but a general interest of the greatest importance. This ammunition was to be tested on five thieves who were to be executed anyhow, and it was to be seen whether this crystallized poison contained another poison which had not been found in the chemical tests. The remainder of the original Russian ammunition was to be used, and also German ammunition which had been made in imitation of the Russian. At the same time—and this was the main purpose of the experiment—it was to be discovered how much time would elapse between the injury and the appearance of the symptoms of poisoning, in order, if necessary, to be able to use an antidote. This question was of such great importance because an antidote to aconitine is hardly known, and if this had actually been the beginning of poison warfare, then efforts would have to be made immediately to find an antidote. Therefore, the head of the Reich Criminal Police Office asked me, and the Chief of the Criminal Technical Office also asked me, to participate in the execution myself, although that was not actually my work; but Dr. Wittmann said he did not know of any toxicologist except one in Berlin; they had all been drafted, and as a bacteriologist I had a certain amount of experience in symptoms of poisoning connected with bacteria and, therefore, he asked me to take over this job. I was rather unwilling to do so. I pointed out to Dr. Wittmann that the regular police in Vienna had a pharmacologist who was very experienced and I suggested that he should be called upon; but this was not done because of the poor communications resulting from the air warfare. Since, on the other hand, this question was doubtless of great significance and should not be postponed, I finally declared myself willing to fulfill this request. In accordance with the purpose of this job, I made not only the usual report, but a rather more detailed report on the symptoms of poisoning. There is the report which we have here in this prosecution document.

Q. You have said that this ammunition which was captured was of Russian production. How can that be proved?

A. The prosecution itself proved that. To this Document NO-201, Prosecution Exhibit 290, some files were attached which were not included in my report. There are three drawings of cross-sections of these bullets which were made and handed in to the Institute. The heading is “Poison bullet from a Russian pistol, calibre 7.65” and details about the construction of this bullet.

Q. You say that this photostatic copy of the drawings of the bullet was not part of your report. How is that shown? Will you compare the stamps in the diary?

A. The report which I handed in is dated 12 September 1944, and then the next day it was received by the Criminal Technical Office, and the receipt stamp carried the number “Secret 53”. The drawings, however, have a different secret journal number, that is, 15-1944. If the number G-53 was in September then, if the distribution of letters received is assumed to be even throughout the year, I should assume that the Reich Criminal Police Office received these drawings in March of the same year. At that time I did not know anything about this attack, and the experiment had not been started yet. Nor did I know any details about the possibility of such poison warfare.

Q. Who was present at the execution?

A. Dr. Ding, who happened to be in Berlin and whom I took with me in order to support my observations; it was he who conducted the actual medical examination. I, myself, merely ascertained the occurrence of death. Also Dr. Wittmann, representing the Criminal Technical Institute; also a representative of the camp commandant, I believe the adjutant; and an Untersturmfuehrer who performed the execution, that is, actually shot the people. It is possible that there were others whom I do not remember and whose names I do not know.

Q. Did you investigate in any way who these people were who were executed, and by what court they had been condemned to death?

A. I talked with the people; they understood German; they were apparently Germans. I considered them ethnic Germans [Volksdeutsche] of whom we had large numbers in Germany at that time. On the other hand, I knew that in concentration camps executions were carried out, and I had been told that this was an official matter and that there had to be an official representative of the camp commandant present. The fact that such a representative was present at this execution was sufficient for me to assume that the matter actually was official and, on the other hand, I had no opportunity to be informed of the sentence or anything like that.

Q. Then you did not see the death sentence order before it was carried out?

A. No. I did not have the opportunity because the doctor is merely called in to an execution to ascertain when death occurs, but I am convinced that it was not my duty to examine the sentence order, for I had nothing to do with the actual execution. The order was given by the representative of the camp commandant; someone who was attached to the commandant’s office actually shot the people, and I was merely there to ascertain when death occurred and to note the symptoms of poisoning, but Dr. Ding did the latter for me. The official information from a high authority was sufficient proof to me for the legality of the execution.

Q. In the case of two of the five thieves, the poison had no effect. You saw the suffering of the other three from the poison; why did you not shorten this suffering?

A. The sight of this execution was one of the most horrible experiences of my life. On the other hand, I could not shorten the symptoms for in the first place there was no antidote against aconitine available. If it is in the circulation, then there is no possibility of removing it. In the second place, it was the express purpose to find out how long the symptoms of poisoning last in order in later cases to be able to use an antidote, which it was hoped would soon be discovered.

Q. Did you know that executions in Germany can only be carried out by shooting, by hanging, or by beheading, and did you not have any misgivings when this execution was carried out in a different way?

A. I am not a jurist; I do not know the methods of execution. On the other hand, I have already said that in my opinion the state itself has the right to determine the method of death for its citizens in wartime and doubtless has the right to determine the method of an execution. Here the suspicion had arisen that poison war was beginning against Germany. This seemed to be supported by the finding of poison Russian ammunition. Since the investigations were carried out by the highest authorities in the Reich, I had no doubt about the juridicial admissibility upon which I, as a doctor, had no influence.

PRESIDING JUDGE BEALS: Witness, were each of these men struck by more than one bullet or only by one bullet each?

DEFENDANT MRUGOWSKY: Each one was shot only once in the thigh; two of these five persons were immediately killed by another shot, because the first shot of the poison ammunition had hit the artery in the thigh and their suffering was immediately stopped; but the others had only flesh wounds and after a certain period of time, symptoms of poisoning appeared; that was three people.

DR. FLEMMING: Did you have anything else to do with the previous history of this execution?

MRUGOWSKY: No.

* * * * *

EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS
DR. ANDREW C. IVY[15]

_CROSS-EXAMINATION_

* * * * *

DR. SERVATIUS: Mr. President, I should like to ask your permission to put to the witness a small newspaper notice from the newspaper “The People” of 3 March 1946. This is an English newspaper. Regarding the defendants before the IMT, the following was stated: “The opinion of some people is that they should be condemned very soon.” Then it says: “Others believe that they should be made to expiate their crimes by helping to cure cancer, leprosy, and tuberculosis as experimental subjects.”

Is the thought of atonement contained therein?

WITNESS DR. IVY: Yes, but it is expressed in a hysterical manner.

Q. Yes. I agree with you.

Witness, do you believe that if a person does not volunteer for an experiment, the state can order such atonement?

A. No.

Q. Do you not believe that you can expect something of a prisoner that goes beyond his actual sentence if at the same time people outside prison are subject to such burdens?

A. No. Those ideas were given up many years ago in the science and study of penology. The primary objective of penology today is reformative, not punitive, not expiative.

Q. Witness, is that the recognized theory of penology throughout the whole world today?

A. It may not be the recognized theory throughout the whole world today, but it is the prevailing theory in the United States. There is one other aspect that is quite large and essential, and that is the protective aspect of imprisonment to protect society from a habitual criminal.

Q. Witness, if a soldier at the front is exposed to an epidemic and can be almost certain that he will catch typhus and deserts and hides behind the protecting walls of a prison, would you not consider it justifiable if he is persuaded to volunteer for an experiment that concerns itself with typhus?

A. Will you read the question again?

Q. If a soldier deserts from the front where typhus is raging for fear that he too will contract typhus and prefers to be imprisoned in order thus to save himself, do you think it is right for him to be persuaded while he is serving his sentence to subject himself to a typhus experiment?

A. As a volunteer? Yes.

Q. I see. And would you not take a step further, if this prisoner says, “No, I refuse, because if I do this there wouldn’t have been any point in my deserting; I deserted in order to save myself. My buddies may die but I would just prefer not to.”

A. The answer to that question is no.

Q. Don’t you admit that one can hold a different view in this matter?

A. Yes, but I don’t believe it could be justified.

* * * * *

H. Usefulness of the Experiments

a. Introduction

Both by testimony and argument the defense claimed that the medical experiments had generally been useful in furthering medical science, that in some cases the experiments alleged as criminal had increased the speed of the progress of medical science, and that in some cases there was no other alternative for the development of medical science except to conduct experiments on human beings. The prosecution, in addition to arguing that voluntary participation by the subject of experimentation was a prerequisite of legal experiments, argued that the experiments turned out to be entirely useless for medical science and human progress, and that in some cases it was doubtful if considerations of medical science played any controlling role in the decision to conduct the experiments.

Selections from the defense argumentation have been made from the final pleas for the defendants Becker-Freyseng and Beiglboeck. Extracts from these final pleas appear below on pages 62 to 64. A part of the opening statement of the prosecution (vol. I, p. 37 ff.) was devoted to this topic. Defense evidence on the usefulness of the experiments has been selected from the direct examination of the defendants Mrugowsky and Rose. Extracts from their testimony appear below on pages 66 to 70.

b. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BECKER-FREYSENG_[16]

* * * * *

At the moment I consider one factor above all to be material. It is the following question: Was everything done, when the sea-water experiments were being planned, to furnish all data required for establishing the necessity of the experiments? And I think I can definitely answer this question in the affirmative.

The defense has proved the high sense of responsibility applied to the inquiry on the necessity of the sea-water experiments. Scientists of international reputation, like Professor Dr. Eppinger and Professor Heubner, were consulted, and they definitely answered this question in the affirmative. More cannot be expected or demanded in the way of a sense of responsibility. In my opinion, the mere fact that these scientists were asked their opinion on the issue in question shows that everything was done on the part of the Chief of the Medical Service of the Luftwaffe and his office to reach the right decision in this question.

With regard to the purely objective judgment of the sea-water experiments and their necessity, I should like to refer to the statements made in my closing brief for Dr. Becker-Freyseng.

At this point, I should, however, like to add the following: The prosecution has tried to make out that it was the purpose of these sea-water experiments to decide whether Berkatit removes the salt from sea water. This contention of the prosecution has in no way been proved. I must stress here again, most emphatically, that this was never the purpose of the sea-water experiments.

All people concerned realized that Berkatit does not remove the salt from sea water. The question which was to be clarified and which necessitated the experiments was rather the following: Under the action of the vitamins contained in Berkatit, will the kidneys be capable of producing a urine with a higher sodium chloride concentration than is normally the case? Dr. Eppinger answered this question neither in the affirmative nor in the negative; he stated that this question could be decided only by experiment.

In addition there was another question to be decided, as to whether in case of shipwreck it would be more desirable to endure thirst, or whether marooned fliers should be advised to drink small quantities of salt water. In 1942-1944 this question was also raised in the United States and England and there, too, human experiments were carried out. But all these individual questions were only part of the great issue of how shipwrecked persons could be helped to escape the agony and danger of dying from thirst. These issues were the basis for the experiments conducted in 1944. In my opinion it is not admissible to construe arbitrarily another issue today and to contend on the basis of such issue, which never existed, that these experiments were not necessary. These medical issues alone necessitated the experiments. There were other issues too, to which I want to make short reference.

Until 1944 the world lacked an agent to make sea water drinkable. Such an agent was an absolute necessity. Nobody denied even then that Wofatit, developed by the defendant Schaefer, would have been an ideal agent for this purpose. It was, however, equally clear that this agent could only be manufactured by withdrawing the necessary raw material, namely silver, from other war-essential uses.

Furthermore, it was not denied that Berkatit did not require critical raw materials in the same measure. Another circumstance to be considered was that Berkatit could have been produced in existing plants, whereas it would have been necessary to erect new plants for the production of Wofatit. Accordingly, these technical reasons favored the introduction of Berkatit. It can hardly be denied that it was necessary for a medical officer conscious of his responsibilities in war to consider these reasons when reaching a decision. Incidentally, the expert of the prosecution, Professor Ivy, also stated that these reasons were definitely worthy of consideration.

Accordingly it had to be clarified, whether Berkatit could not, after all, be introduced for distribution to persons facing the risk of shipwreck, and the inquiry into this question was all the more necessary as, according to the opinion of Professor Eppinger and Professor Heubner, Berkatit apparently contained vitamins which eliminated the risks incurred by human beings when drinking sea water. Whether the opinion of the experts, Heubner and Eppinger, was right or not, could, at that time as today, only be established by experiment.

Hence if the defendant Dr. Becker-Freyseng, who examined all these factors and applied all precautions possible, became convinced in 1944 that the experiments could not be avoided, and if, from this viewpoint, in his official capacity as a consultant (Referent) he reported to his highest authority at that time, Professor Dr. Schroeder, that he considered the experiments necessary, then, in my opinion, he can in no way be charged under criminal law on that account.

Therefore, in my opinion, it has been proved that Dr. Becker-Freyseng considered these experiments necessary and that he was entitled to consider them necessary. And this question alone can be made the basis for an inquiry into his guilt under criminal law.

With regard to this point, I would like in conclusion to refer to the testimony of Professor Dr. Vollhardt. This world-famous physician, this research scientist, recognized as such in international circles, upon whom, only a few weeks ago, on the occasion of his 75th birthday, the highest German decoration of science was bestowed, namely the Goethe Medal for Art and Science, a ceremony in which nearly all European countries, also America, joined, stated before this high Tribunal, and I quote:

“I regarded it as sign of a sense of responsibility that in view
of the increasing number of flying accidents, the sea-emergency
question was taken up and these experiments were launched.”

Insofar, I consider it proved that the planning of these experiments was in no way objectionable.

* * * * *

_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BEIGLBOECK_[17]

* * * * *

Even medical science on both sides had to assist warfare. I have before me the index of the best known scientific English periodicals from the war period, “The Lancet” and “Nature”. Now, after the war, General T. J. Betts of the United States War Department and Professor W. T. Sinsteat of the British Supply Office declared that the captured German scientific results accomplished during the war were of the greatest use for the economic progress of British and American industry. Even the terrible freezing experiments of Dr. Rascher proved to be of greatest use for America in the war against Japan. (_Becker-Freyseng 31, Becker-Freyseng Ex. 18._)

c. Evidence

_Defense Documents_

Doc. No. Def. Ex. No. Description of Document Page Becker-Freyseng Becker-Freyseng Extracts from Harper’s 65 31 Ex. 18 Magazine entitled “Secrets by the Thousand” by C. Lester Walker.

_Testimony_

Extract from the testimony of defendant Mrugowsky 66 Extracts from the testimony of defendant Rose 69

BECKER-FREYSENG DOCUMENT 31
BECKER-FREYSENG DEFENSE EXHIBIT 18

EXTRACTS FROM HARPER’S MAGAZINE ENTITLED “SECRETS BY THE THOUSAND” BY C.
LESTER WALKER

Someone wrote to Wright Field recently saying he understood this country had got together quite a collection of enemy war secrets, that many were now on public sale, and could he, please, be sent everything on German jet engines. The Air Documents Division of the Army Air Force answered: “Sorry—but that would be fifty tons.”

Moreover, that fifty tons was just a small portion of what is today undoubtedly the biggest collection of captured enemy war secrets ever assembled. If you always thought of war secrets—as who hasn’t—as coming in sixes and sevens, as a few items of information readily handed on to the properly interested authorities, it may interest you to learn that the war secrets in this collection run into the thousands, that the mass of documents is mountainous, and that there has never before been anything quite comparable to it.

* * * * *

One Washington official has called it “the greatest single source of this type of material in the world—the first orderly exploitation of an entire country’s brainpower”.

How the collection came to be goes back, for beginnings, to one day in 1944 when the Allied Combined Chiefs of Staff set in motion a colossal search for war secrets in occupied German territory. They created a group of military-civilian teams, termed the Joint Intelligence Objectives Committee, which was to follow the invading armies into Germany and uncover all her military, scientific, and industrial secrets for early use against Japan. These teams worked against time to get the most vital information before it was destroyed, and in getting it performed prodigies of ingenuity and tenacity.

* * * * *

III

In matters of food, medicine, and branches of the military art, the finds of the search teams were no less impressive. And in aeronautics and guided missiles they proved to be downright alarming.

* * * * *

“As for medical secrets in this collection”, one Army surgeon has remarked, “some of them will save American medicine years of research; some of them are revolutionary—like, for instance, the German technique of treatment after prolonged and usually fatal exposure to cold.”

This discovery—revealed to us by Major Alexander’s search already mentioned—reversed everything medical science thought about the subject. In every one of the dread experiments the subjects were most successfully revived, both temporarily and permanently, by immediate immersion in hot water. In two cases of complete standstill of heart and cessation of respiration, a hot bath at 122° brought both subjects back to life. Before our war with Japan ended, this method was adopted as the treatment for use by all American Air-Sea Rescue Services, and it is generally accepted by medicine today.

EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[18]

_DIRECT EXAMINATION_

* * * * *

DR. FLEMMING: I further submit an excerpt from the testimony of Generalarzt Dr. Schreiber which he made on 26 August 1946 before the International Military Tribunal. This can be found in the transcript of the International Military Tribunal for that date. This is Mrugowsky Document 27. I offer it as Mrugowsky Exhibit 45. Answering the question, “What scientific value did the experiments [typhus experiments in Buchenwald] of the specialist Ding have”? Generalarzt Dr. Schreiber answered, “In my opinion they had no scientific value at all because during the war we had already gained much experience and collected a great deal of data in this field. We were thoroughly acquainted with the composition and qualities of our vaccine and no such tests were required any longer. Many of the vaccines examined by Ding were not used any more at all and were rejected.”

Would you define your position to that statement?

DEFENDANT MRUGOWSKY: I do not know how Schreiber could have expressed that opinion, nor do I know whether he is in possession of full knowledge of the results of this work. I never discussed this question with him and I therefore cannot examine it. This much is clear, however, that Schreiber is speaking of a later period of time, for the vaccines that were no longer produced were not produced because the experiments of Ding had proved their inferiority. The epidemiological examination of the various vaccines during the war only originates from a later period, in particular the years 1943 and 1944. The exploitation of these experiences only originates from the last years of the war and it is, therefore, my opinion that this testimony of Schreiber is incorrect.

Q. I am interrupting you and I shall have Handloser Exhibit 14 shown to you. We are here concerned with an excerpt of a scientific thesis by Geheimrat Otto. Do you know Geheimrat Otto?

A. Yes, I know Geheimrat Otto. He is probably the best typhus expert not only in Germany but in Europe, who has dealt with typhus all his life.

Q. From this excerpt you will see that Geheimrat Otto says, still in 1943:

“While the efficacy of lice vaccines has already been tested on
a large scale in Poland, Ethiopia, and China, and the vaccine
has proved its value, it is still necessary to gather
large-scale practical experiences with lung and vitelline
membrane vaccines. In animal experiments they have proved of
equal value with the former.”

Would you say something on that?

A. Professor Otto says here that even in the year 1943 the vitelline membrane vaccine and the vaccines from lungs of animals were not sufficiently known. That confirms what I have just testified and that is in answer to Dr. Schreiber’s statement.

Q. The witness Bernhard Schmidt, who was interrogated here, stated that human experiments were superfluous for the purpose of testing vaccines and that the value of the individual typhus vaccines could have been ascertained in an epidemiological way. What is your opinion in that connection?

A. This is my opinion also. It is my opinion that these tests could have been carried out in an epidemiological manner. I represented that point of view before Grawitz and Himmler from the very beginning.

Q. You stated yesterday that to test this matter in an epidemiological way, a large number of persons would have had to be vaccinated and compared with a large number of persons who were not vaccinated. Would such a long experiment have been possible considering the circumstances prevailing during the war?

A. Such a test would have been possible. It was actually introduced by me within the framework of the ministry. It is a matter of course, however, that the results can only be collected at a very late date and can only be exploited at a much later date. In the case of the entire experiment we were concerned with bridging over this space of time.

Q. In carrying out this examination one could have found that one vaccine has only a very small effectiveness, as was actually found out in the case of the Behring vaccine. In that case would you say that the mortality of persons vaccinated with the inferior vaccine would have been much greater than the entire amount of fatalities as they occurred in Buchenwald? You know that the statement regarding the fatality figures fluctuated between 100 and 120.

A. That could be assumed to be the case with certainty. A comparison is the manner in which all tests are carried out in this field. I shall give you a few examples for that. When Emil von Behring in the year 1890 discovered the diphtheria serum, it was at first used by a physician of the Berlin Charité in the case of diphtheria-infected children. He treated about 1,200 children suffering from diphtheria with that serum. He registered a mortality rate in the case of these children, in spite of the treatment, of approximately 22 percent. Just as many children did not receive the serum but were treated in a different manner. In this group the mortality rate was double, approximately 44 percent. These 240 or 250 children who died, and who were in that control group could certainly have been saved if they had been given the blessing of that diphtheria serum. But that was in reality the purpose of that test and one had to take into account that a larger ratio of fatalities would result in the group to be compared and that then the value of the serum would be recognized.

Q. I think that this example will suffice. In that case you are really admitting that an objection against experiments in Buchenwald could not be justified?