Chapter V: Part I: , p. 1457.) Moreover, there is no proof that any of the (2)

A. During the war I did not work on any disease as ardently as on typhus. I treated thousands of patients who fell ill with typhus and examined them. I believe that in the case of such an experience one gains some knowledge of the disease. I often considered that question and I hold the opinion that my objection at the time was perhaps not justified by events. On the other hand, it is my opinion that in the case of every task one has to keep the question in mind whether one is in a position to execute that task. I must admit even today that in spite of the success of the experiments, which cannot be denied, I would act similarly in yet another position and would assume the same attitude as I assumed at that time. Even today I would not be prepared to carry out any such experiments personally or have them carried out upon my responsibility, although success undoubtedly would come about.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[19]

_DIRECT EXAMINATION_

* * * * *

DR. FRITZ: What do you know about the reasons for this protest (against experiments) being ignored and the typhus experiments being carried out in spite of it?

* * * * *

DEFENDANT ROSE: The Buchenwald experiments (with typhus vaccine) had four main results. First of all, they showed that belief in the protective effect of Weigl vaccine was a mistake, although this belief seemed to be based on long observation. Secondly, they showed that the useful vaccines did not protect against infection, but almost certainly prevented death, under the conditions of the Buchenwald experiments. Thirdly, they showed that the objections of the biological experts to the vitelline membrane vaccines and to the lice vaccines were unjustified, and that vitelline membrane, rabbit lungs, and lice intestines were of equal value. We learned this only through the Buchenwald experiments. This left the way open to mass production of typhus vaccines.

The Buchenwald experiments showed in time that several vaccines were useless. First, the process according to Otto and Wohlrab, the process according to Cox, the process of Rickettsia Prowazeki and Rickettsia murina, that is, vaccine from egg cultures; secondly, the vaccines of the Behring works which were produced according to the Otto process, but with other concentrations; finally the Ipsen vaccines from mouse liver. The vaccines of the Behring works were in actual use at that time in thousands of doses. They always represented a danger to health. Without these experiments the vaccines, which were recognized as useless, would have been produced in large quantities because they all had one thing in common: their technical production was much simpler and cheaper than that of the useful vaccines. In any case, one thing is certain, that the victims of this Buchenwald typhus test did not suffer in vain and did not die in vain. There was only one choice, the sacrifice of human lives, of persons determined for that purpose, or to let things run their course, to endanger the lives of innumerable human beings who would be selected not by the Reich Criminal Police Office but by blind fate.

How many people were sacrificed we cannot figure out today; how many people were saved by these experiments we, of course, cannot prove. The individual who owes his life to these experiments does not know it, and he perhaps is one of the accusers of the doctors who assumed this difficult task.

I. Medical Ethics

1. GENERAL PRINCIPLES

a. Introduction

In a case involving the charge that human beings were subjected to medical experiments of many kinds under varying circumstances, it was inevitable that questions of medical ethics became a part of the proof and the argumentation.

The prosecution’s rejoinder to the statement of the defendant Rose appears on page 71. As illustrations of the defense position on medical ethics, extracts have been taken from the final pleas for the defendants Gebhardt and Beiglboeck. These appear on pages 71 to 77. Considerable testimony was given on this question by defendants and by expert witnesses, and appears on pages 77 to 86. Selections from this testimony have been taken from the direct examination of the defendant Rose, the cross-examination of the prosecution witness Professor Werner Leibbrandt, and from the direct examination of the prosecution witness Dr. Andrew C. Ivy.

The judgment of the Tribunal deals at some length with the medical ethics applicable to experimentation on human beings (p. 181 ff.).

b. Selection from the Argumentation of the Prosecution

_EXTRACT FROM THE CLOSING STATEMENT
OF THE PROSECUTION_[20]

* * * * *

In view of the clear and unequivocal proof of the defendant Rose’s participation in the typhus murders of Buchenwald he can only plead that he didn’t enjoy doing what he did, that he objected to the experiments at the Third Meeting of the Consulting Physicians of the Wehrmacht in May 1943. But this is his condemnation, not his salvation. In March 1942 he was in Buchenwald and saw what was being done. In May of the same year he asked Mrugowsky to test a vaccine for him in those experiments. Four inmates were killed as a result. In May 1943, he objected to the experiments in what he describes as strong terms. But in December, he was again instigating still another experiment which resulted in the murder of six men. He is a living example of a man who could have abstained from participating in these crimes without threat of harm to his person or position by any agency of the Nazi Government. He was not arrested and tried by the SS because of his objection. He was not committed to a concentration camp. In spite of that, he voluntarily participated in these same crimes to which he said he objected. With his knowledge, prestige, and position, he is even more culpable than the miserable and inexperienced Ding who actually performed the experiments in the murder wards of Buchenwald.

* * * * *

c. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT_[21]

* * * * *

_The Principles of Medical Ethics and the Applicable Law_

During the hearing of evidence, views were repeatedly given on the question of which principles of medical ethics are to be considered when performing experiments on human beings. In my opening statement before the evidence was submitted I pointed out that in the case of these defendants there is no reason to examine fundamental questions of medical ethics in these proceedings. Law and ethics are measured by different standards which sometimes contradict each other. The same applies to the principles of general ethics as well as to those of a particular profession. A deed offending the recognized principles of medical ethics does not necessarily constitute a crime. Only the cogent precepts of the law can be used as the basis for a verdict, and not the unwritten regulations and convictions existing inside a profession.

However, it cannot be concluded from this that the principles of medical ethics and their practical application were of no importance at all in these proceedings. These principles cannot, of course, be applied directly. At the same time there is no doubt that the principles of medical ethics and above all their practical application in recent decades can play an indirect part insofar as they have to be taken into consideration when interpreting the law. However, evidence has now proved that in recent decades and even earlier, numerous experiments were carried out on human beings, and, moreover, on persons who did not volunteer for such purpose. In this respect I refer to the statements of the expert Professor Dr. Leibbrandt, witness for the prosecution. I furthermore refer to the extensive evidence submitted by the prosecution on this question from which it appears that in numerous cases experiments were carried out on human beings, of the nature and degree of danger of which they could not have been aware and to which they would never have agreed voluntarily. The only conclusion which can be drawn from these facts is that during recent decades views on this question have changed in the same way as the relations between the individual and the community in general have changed. In this connection I need not give the detailed reasons which led to this development. It is a fact that, at least in Europe, the state and the community have taken a different attitude toward the individual. However differently one may write about the change in these relations in detail, one thing is certain, namely, that the state has more and more taken possession of the individual and limited his personal freedom. This is evidently one of the accompanying facts of technics and the modern mass-state. It must be added that the development of medicine in the course of the last decades has led to discriminating formulations of questions which can no longer be solved by means of the laboratory and animal experiments.

The evidence has shown that not only in Germany and perhaps not even primarily in this country, the reorganization of the relationship between community and individual has resulted in new methods in the sphere of medical science. In nearly all countries experiments have been performed on human beings under conditions which entirely exclude volunteering in a legal sense.

Immediate consequences arise for the interpretation of the law from this change of medical views and above all from the change in medical practice, since the essence of the law is universal and abstract and naturally does not state the limits and the conditions under which experiments on human beings are permissible and the borderline of the criminality of such an experiment. The real practice regarding this question is all the more important for the interpretation of the law since almost every law, including Control Council Law No. 10, contains standard rudiments of case facts, which means that determination in a particular case can only be the outcome of a judicial judgment. No special proof is needed to show that the question when and within what limits medical experiments are admissible calls for a judicial judgment, and that this cannot be established without taking practical experience into consideration, not only in Germany but also outside Germany. The standard rudiments of case facts are part of the legal facts and deal with illegality as characteristic of the punishable act. Actual medical practice inside and outside Germany, however, has not only to be considered when examining the question as to whether the actions constituting the subject of the indictment are illegal, but above all it is fundamentally important when answering the further question as to whether the actions constituting the subject of this procedure constitute a criminal offense. In view of the fact that a criminal offense is not likely to be a permanent psychological fact but a standard computed fact in the sense of a personal reproach, the Court for this reason also will not overlook the fact that particularly during the last years, even outside Germany, medical experiments were performed on human beings who undoubtedly did not volunteer for these experiments. The unity of law and the indivisibility of its basic idea exclude judging one and the same fact simultaneously according to different legal principles and standards.

I shall comment later on the question of whether the defendants in the performance of the experiments which constitute the indictment acted primarily in their capacity as physicians, or whether their conduct—if a just decision is to be rendered—must no longer be regarded from the viewpoint of war service as medically trained research scientists.

* * * * *

_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BEIGLBOECK_[22]

* * * * *

If one confronts the doctor with that type of scientist who, with the test tube in his laboratory, with the syringe or the surgical knife in his hand, steps on animal and human corpses, in order so fanatically to satisfy his scientific instinct, then we very decidedly object to such a scientist. We have found this type in the documents of this trial in the person of Dr. Rascher, whose name casts a dark shadow over the proceedings. Dr. Leibbrandt, the protector of medical ethics, would therefore have rendered a good service to German science if, in his capacity as a psychiatrist, we had pointed out that Rascher, this sadist and psychopathist, had nothing whatsoever to do with real science.

It is my duty as a defense counsel to emphasize energetically that it is not permissible to construct from local coincidences any connection between my client and Rascher and his system.

The scientific research worker sees his task in the discovery of the unknown in order to equip the doctor with new weapons in his fight for human life. I briefly want to demonstrate with two examples why the modern medical profession cannot renounce the scientific research work that was impossible without great efforts and sacrifices (1) giving a brief description of the development of modern surgery; (2) mentioning the school to which the defendant Beiglboeck belonged as a pupil and a teacher. I do not give this second example in order to glorify my country, but because the particular influence of its teachers is decisive for the spiritual standard of the personality.

At the beginning of modern surgery stands that mighty figure of English surgery, Joseph Lister, whose great idea it was that the surgeon should not fight the inflammation of the wound but should prevent its cause, i.e., germs entering externally.

Thanks to bacteriology, anti-sepsis was changed into asepsis.

Over the entrance gate of the General Hospital in Vienna we read the words “Saluti et solatio aegrorum—Dedicated to the health and consolation of the sick.” These words not only demand the highest accomplishment of the doctor’s duties but are the motive for the most successful work in the large field of medical research. Theory and practice joined together in order to become a piece of living humanity. I would go beyond the limits of my task if I mentioned all the names that spread the glory of Vienna University throughout the world. But their penetration into the world of the unknown was always a hazardous enterprise which demanded courage and sacrifice.

I want to quote the words of one of the great doctors, Professor Wagner-Jauregg, who says in his book “Fever and Infection Therapy”,

“The vaccination against malaria was certainly a risk, the
outcome of which could not be foreseen. It was dangerous for the
patient himself and this to a much higher degree than the
treatment with tuberculin and other vaccines, and it also was a
danger for the surroundings and even for the community.”

And, on page 136, it states “Three patients died after having been vaccinated with blood infected with malaria tropica and not with malaria tertiana”; and “The tragic outcome of this experiment was discouraging, and only a year later could the author decide to proceed with the malaria vaccinations * * *.”

Nobody talks of these victims today, but Wagner-Jauregg’s revolutionary discovery is known and adopted throughout the world and has become the common property of all peoples for the benefit of suffering mankind.

These doctors who knew that the fight against disease and death was a thorny path were all more than ready to sacrifice their own lives.

The real scientist and the real doctor, therefore, do not oppose each other. However, the scientist must not forget that nature is the expression of the divine will and that only this cognition can save him from the “hybris”, the boundlessness which for the Greek tragedians was the greatest vice of mankind.

Above all, the words of the greatest German physician, Theophrastus Bombastus von Hohenheim, called Paracelsus, must be applied to both scientist and doctor “The doctor grows with his heart, he comes from God and is enlightened by Nature—the best of all drugs is Love.”

My learned colleagues have compiled a long list of documents on human experiments especially from the Western democracies. It would be unjust, however, to conceal the enormous benefit of the human experiment. The fact that Paul Ehrlich dared to release his drug “Salvarsan” before it had been sufficiently tested saved thousands from the dangerous consequences of one of the worst epidemics. The fact that Strong took the responsibility upon himself to perform the probably very dangerous experiment with plague bacilli made it possible to vaccinate thousands of persons and to save them from almost certain death. The fact that Strong was in a position to prove that beri-beri was a disease caused by a deficiency, and that Goldberger proved the same for pellagra, made it possible to fight this deficiency and to liberate entire countries from one of their worst diseases.

With regard to the criminal law, however, and the judgment of crimes against humanity, it is the decisive result that in other countries, too, under their own generally prevailing medical and ethical convictions, doctors carried out similar or the same experiments for the benefit of scientific research or in consideration of a crisis in their country.

When I said that the surroundings had an influence on the doctor’s attitude, I did not mean the second determining factor of our individuality, the material influence on the organism which might modify or mitigate the influence of the actual conditions at the time upon the decisions of a physician.

Concentration camp, militarism, and peoples’ court—three important pillars of the Third Reich—they have collapsed. They are not to be forgotten, however, when examining the guilt of the individual. Every German had to fear them in one form or another. And then came the war. War was once called “the steel bath of the peoples”. Heraklit called it “the father of all things”. I can only repeat the judgment of the IMT that “war is the evil itself.” This is true to the highest degree for the last war. It was a total, a terrible war. 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, “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 have declared that the captured German scientific accomplishments 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 the greatest use for America in the war against Japan. (_Becker-Freyseng 31, Becker-Freyseng Ex. 18._) And what about us soldiers? We stood in the air-raid shelters, the Socialist beside the Party member. We did not complain. We saw villages go up in flames, innocent women and children become the victims of air raids. We saw our country, the Fatherland, in distress, and, even if we hated Hitler and his followers like the plague, we believed that we had to fulfill our duty to our country to the bitter end. One cannot explain these things, they have to be experienced. In such times a doctor is placed unwillingly between Scylla and Charybdis, between his concept of his profession and his duty as a soldier. It is easy today to say with pathos from an academic chair “_numquam nocere!_” A man does not say now, “I was a member of the resistance. Day in and day out I was trying to help persons who were racially and politically persecuted.” He says, “Then, like everyone else, I merely did my duty.”

Abraham Lincoln, one of the greatest Americans, said in a speech before the American Congress in 1862, “The dogmas of the quiet past are inadequate to the stormy present. * * * In the face of new events we must think and act in a new way.”

With this I intend to conclude my statements about medical ethics and to repeat the words which Liek wrote at the end of his book, “The Doctor and His Mission”, “If we want to abolish undesirable conditions in medicine, we must follow our conscience—to help and to heal, that is, today as always, the mission of the doctor.”

* * * * *

d. Evidence

_Testimony_
Page
Extracts from the testimony of defendant Rose 77
Extracts from the testimony of prosecution witness Professor 80
Werner Leibbrand
Extracts from the testimony of prosecution expert witness Dr. 82
Andrew C. Ivy

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[23]

_DIRECT EXAMINATION_

* * * * *

DR. FRITZ: You heard the lecture which Dr. Ding gave on his experiments at the Third Conference of Consulting Physicians in the Section for Hygiene and Tropical Hygiene?

DEFENDANT ROSE: Yes. That was the time when I protested openly against this whole method.

Q. Well, what happened?

A. Dr. Ding gave his lecture in a camouflaged form as in his article for the Journal of Hygiene and Infectious Diseases. Therefore, the unsuspecting listener could not tell that it was about experiments on human beings.

When the discussion began, I commented on the results of these experiments. That part of my statement is contained in the record of the conference. It is Document Rose 38, which has already been submitted. (_Rose 38, Rose Ex. 10._) I do not intend to read these remarks, I simply want to point out that one can find there what I said about the technical aspect of the experiments and about the results.

Then I spoke of the ethical side of the whole thing and this part of my statement has been stricken from the record. I cannot, of course, reproduce today the exact wording but only the sense of what I said. I said more or less as follows: As important and as basic as the results may have been, they were nevertheless achieved at the cost of a number of human lives. We as hygienists should object against a life and death experiment being performed as the prerequisite for the introduction of a vaccine. So far, the customary procedure had been the testing with animal experiments and subsequent determination of tolerance by human beings and epidemiological exploitation. This procedure had proved its value. We had to stick to it and we couldn’t let other political and state authorities force us to conduct human experiments. I spoke much longer at the time. I spoke for at least ten minutes. Ding replied that he could pacify my conscience. The experimental subjects had been criminals condemned to death. My answer was: I knew that myself. I was not interested in the individuals concerned but in the principle of human experiments in testing vaccines. At this comment Professor Schreiber interrupted the discussion. He said he protested against my criticism and if we wanted to discuss basic ethical questions we could do that during the recess. He would have this part of the discussion stricken from the record and that was done. After the meeting various participants came to me and we discussed the whole matter. Some agreed with me; others were convinced that in such an important question human experiments were justified. Of course, those people who [_sic_] believed Ding’s assurance that the subjects were criminals condemned to death. I no longer remember the individual men with whom I talked during the recess and I don’t know who was in favor and who was against it. The only one I remember is Professor Mrugowsky because he spoke as an SS member and the experiments had been conducted by an SS doctor, and because I thought that Mrugowsky was Ding’s superior in every way. Of course, I remember that Mrugowsky of all people came and said that, in principle, he agreed with me, and that he had expressed similar misgivings to Grawitz and that Grawitz had rejected his misgivings. Then I also learned from Mrugowsky that Himmler was behind all these experiments.

* * * * *

DR. FRITZ: Did you later discuss the matter of experiments on human beings before a large group of people?

DEFENDANT ROSE: Yes. That happened once again before a large number of people, but it was not about typhus experiments. It must have been about October 1944. The question at hand then was grippe. There was a meeting, a rather large meeting at which grippe vaccine was discussed. A number of people reported on the vaccines which they had developed in the laboratory. Among others, Professor Herzberg reported on a vaccine made from dead grippe virus, and Professor Haagen on a vaccine made from living avirulent grippe virus, which he had already tested on personnel at the Strasbourg clinic. Someone in the meeting, I don’t remember who, suggested that the Haagen tests had been insufficient, and that this vaccine should be tested on a larger number of persons. There was no mention of concentration camps then but of student companies. I had considerable misgivings about such experimental vaccination and expressed them. I said that I considered the experimental basis inadequate for these vaccines to be used on human beings. I was not convinced that the virus had been sufficiently attenuated. There was a danger that the vaccine would lead to infection, and one could not take that responsibility on one’s self. It was first of all intended to observe the effectiveness of the protection by determining whether people fell ill of grippe in natural ways after being vaccinated. Then someone else made the suggestion that this would take too long, and we did not know whether there would be an influenza epidemic during that time, and that therefore after the vaccines the subject should be infected with a virulent virus. Since I had already expressed objections to the vaccination, I opposed this proposal even more strongly, and the result of this discussion was that infections were not carried out, but it was decided to carry out the vaccination. Whether these vaccinations were carried out or not, I do not know. At any rate I read no order to the effect that anyone should perform the vaccinations nor did I ever read a report that the vaccinations were carried out. Only later on in imprisonment did I hear that similar experiments, such as were then discussed, and of which I disapproved, were carried out by the British Medical Service on German PW’s. Genzken probably participated personally in this, but I had heard about this before in the internment hospital Karlsruhe where there were people who had experienced these vaccinations.

* * * * *

EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
PROFESSOR WERNER LEIBBRANDT[24]

* * * * *

_CROSS-EXAMINATION_

DR. SERVATIUS: Witness, you stated that the performance of experiments on human beings, as is the subject of the indictment here, can be ascribed to biological thought. What do you mean by biological thought?

WITNESS LEIBBRANDT: By biological thought I mean the attitude of a physician who does not take the subject into consideration at all, but for whom the patient has become a mere object, so that the human relationship no longer exists, and a man becomes a mere object like a mail package.

Q. You spoke of thinking as a biologist. Do I understand that you see therein an action belonging to biological thought?

A. An exaggeration of the purely mechanical or biological point of view, because the physician is not merely a biologist, he is also a biologist. Primarily, however, a physician is a man who assists the human being and not a scientific judge of biological events.

Q. Could there not be other causes for the experiments, such as a collective state thinking?

A. Yes.

Q. Witness, you used the expression “demoniac order”. What do you mean by that?

A. By demoniac order I mean the following: If I define as a basis for medical activity merely the maintenance and safeguarding of the substance of the nation according to blood, the result is that everything which falls outside this pretense has to be cleared away. That is a mild expression of what actually happened, namely, extermination.

Q. Then your demoniac order only refers to the blood aspect. Could it not be applied to the purely state collective aspect as well?

A. Could you give an example so that I can understand it better?

Q. I mean that experiments were undertaken and that the voluntary act of the individual is replaced by the act of the state, namely, by the voluntary approval given by the state.

A. Between the collective idea and the state order on the one hand and the medical individual on the other, there stands something rather important—the human conscience.

* * * * *

Q. Professor, if all these experiments were actually conducted, and also as you said this morning and as Moll’s book shows, Moll alone published approximately six hundred works about thousands of such experiments (on human beings), must one not say that wide circles of medical men judge the question of experiments on human beings under certain conditions differently from you—from an ethical point of view?

A. That I cannot say, because even Moll writes at the end of this work that it is part of a physician’s morals to restrain his urge for natural research in favor of the basic medical attitude as laid down in the oath of Hippocrates, namely, to cause no arbitrary harm to his patient.

Q. But in your opinion, Professor, how should a doctor work in the interest of suffering humanity in cases where, as you have just said, there is no possibility of experiments on animals?

A. The concept of humanity is a very dangerous concept. It is most dangerous of all for the physician. For the physician, the individual stands above all humanity and the individual unfortunately has sunk very low in these last few years.

Q. I believe that you have not quite answered my question. I asked: How do you think the doctor should solve certain questions even in the interest of the individual—questions which cannot be tested with animal experiments and test tubes, as is the case with malaria for instance. This is a problem which must be cleared up if he is to help his suffering patients.

A. That is naturally a very difficult question. But in the end the main thing will always be that a risk must have certain limits.

Q. Thank you. Now I come to another point. This morning, Professor, you expressed disapproval about a book which the defendant Mrugowsky wrote on medical ethics. May I ask, have you read this book?

A. Yes.

Q. Do you know Mrugowsky personally?

A. No.

Q. Then you do not know his ethical point of view?

A. I said that it was quite an ironical joke of world history for someone to quote the high medical ethics of Hufeland in the form of excerpts from his writings, as far as I remember, with a few connecting words and to combine these quotations in a modest little volume, while on the other hand we now know how it was entangled organizationally with the deeds under discussion here. I am only speaking about the entanglement and not about the objective guilt which has not yet been proved.

Q. And from where else do you infer Mrugowsky’s entanglement with the facts under discussion here, apart from the fact that he is one of the defendants indicted?

A. After all, he was the Chief of the SS Hygienic System, and the medical principles of an ethical nature personified by the SS have become clear to me during the last few years. There seems to me to be a large gap between these two things, between these deeds of SS medical ethics and the ethics of Hufeland. I might perhaps understand how a man like Mr. Haubhold could be enthusiastic about a one-sided interpretation of political medicine by Josef Peter Frank in the 18th century. But I cannot understand how the SS ethics can be connected up with the honest ethics of Christian Hufeland.

Q. Professor, you just told us you do not know Mrugowsky at all?

A. No.

Q. Then how can you express a judgment on his personal ethical attitude? You are merely judging from the fact that he belonged to the SS. Before you express such an opinion as you are doing, before you talk about a joke of world history, must you not first know the personal attitude of the person you are criticizing, and is it not quite possible that his personal attitude was such as is expressed in this book?

A. I don’t believe that one can hold a leading position in the SS and then talk about such personal ethics, unless, of course, in ethical questions one does what is called double bookkeeping.

Q. But you admit that all your criticism is pure assumption, in no way based on personal knowledge of the person criticized?

A. I do not know Mr. Mrugowsky.

Q. Thank you. I have no more questions.

EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT
WITNESS DR. ANDREW C. IVY[25]

_DIRECT EXAMINATION_

* * * * *

MR. HARDY: Now, Professor Ivy, before adjournment you were beginning to discuss medical ethics in the United States.

* * * * *

Do you have there also the principles and rules as set forth by the American Medical Association to be followed?

WITNESS DR. IVY: Yes.

Q. What was the basis on which the American Medical Association adopted those rules?

A. I submitted to them a report of certain experiments which had been performed on human subjects along with my conclusions as to what the principles of ethics should be for use of human beings as subjects in medical experiments. I asked the association to give me a statement regarding the principles of medical ethics and what the American Medical Association had to say regarding the use of human beings as subjects in medical experiments.

Q. Would you kindly pass up to me that ruling of the principles put out by the American Medical Association? This apparently isn’t what I am referring to, Doctor. Do you have a publication which is published by the American Medical Association entitled “Principles of Ethics Concerning Experimentation on Human Beings”?

A. Not with me here.

Q. Well now, you have, first of all, a basic requirement for experimentation on human beings, “(1) the voluntary consent of the individual upon whom the experiment is to be performed must be obtained.”

A. Yes.

Q. “(2) The danger of each experiment must be previously investigated by animal experimentation,” and “(3) the experiment must be performed under proper medical protection and management.”

Now, does that purport to be the principles upon which all physicians and scientists guide themselves before they resort to medical experimentation on human beings in the United States?

A. Yes. They represent the basic principles approved by the American Medical Association for the use of human beings as subjects in medical experiments.

JUDGE SEBRING: How do the principles which you have just enunciated comport with the principles of the medical profession over the civilized world generally?

A. They are identical, according to my information. It was with that idea in mind that I cited the principles which were mentioned in this circular letter from the Reich Minister of the Interior dated 28 February 1931 to indicate that the ethical principles for the use of human beings as subjects in medical experiments in Germany in 1931 were similar to those which I have enunciated and which have been approved by the House of Delegates of the American Medical Association.

MR. HARDY: Is it possible that in some field of scientific research investigation by animal experimentation would be inadequate?

A. Will you repeat that question? I did not get it.

Q. Is it possible in some fields of medical research that experimentation or investigation on animals would be inadequate?

A. Yes. The experiment on trench fever is a very good example.

Q. How would you investigate the danger of the experiment prior to resorting to the use of human beings?

A. The hazard would have to be determined by a careful study of the natural history of the disease.

Q. Does malaria also fall into that category?

A. We can use animals to some extent in malarial studies, canaries and ducks, for example, develop malaria; and in research designed to discover a better drug for the treatment of malaria we can use Avian Malaria as a sort of screen method to detect which compounds might be employed with some assurance and might be effective in human malaria. In that way we decrease the random and unnecessary experimentation on man.

Q. To your knowledge have any experiments been conducted in the United States wherein these requirements which you set forth were not met?

A. Not to my knowledge.

MR. HARDY: Your Honor, I have no further questions concerning medical ethics to put to Dr. Ivy; however, I do have one question concerning the high-altitude experiments which I wish to go back to at the conclusion of that complex, in high altitude, and I will have completed my direct examination.

PRESIDING JUDGE BEALS: The Tribunal has no questions of the witness. Do I understand that you have completed your examination of the witness?

MR. HARDY: No. I have not; I have a further question to put to him, but I was going to leave the case of medical ethics.

PRESIDING JUDGE BEALS: We have no questions on that subject; you may proceed.

MR. HARDY: Dr. Ivy, in medical science and research is the use of human subjects necessary?

WITNESS DR. IVY: Yes, in a number of instances.

Q. Is it frequently necessary and does it perform great good to humanity?

A. Yes. That is right.

Q. Do you have an opinion that the state, for instance, the United States of America, could assume the responsibility of a physician to his patient or experimental subject, or is that responsibility solely the moral responsibility of the physician or scientist?

A. I do not believe the state can assume the moral responsibility that a physician has for his patient or experimental subject.

DR. SEIDL: I object to this question in that it is a purely legal question which the Court has to answer.

DR. SAUTER (for the defendants Ruff and Romberg): If I am not mistaken, a document was read this morning which said that the state assumes the responsibility. I believe that I am not mistaken in this. I also want to point out something else, gentlemen, in order to supplement what Dr. Seidl just said.

The question asked here is always what the opinion of the medical profession in America is. For us in this trial, in the evaluation of German defendants, that is not decisive. In my opinion the decisive question is for example, in 1942, when the altitude experiments were undertaken at Dachau, what the attitude of the medical profession in Germany was. From my point of view as a defense counsel I do not object if the prosecution asks Professor Ivy what the attitude or opinion of the medical profession in Germany was in 1942. If he can answer that question, all right, let him answer it, but we are not interested in finding out what the ethical attitude of the medical profession in the United States was. In my opinion a German physician who in Germany performed experiments on Germans cannot be judged exclusively according to an American medical opinion, which moreover dates from the year 1945 and was coded in the years 1945 and 1946 for future use; it can also have no retroactive force.

PRESIDING JUDGE BEALS: The first objection imposed by Dr. Seidl might be pertinent if the question of legality was concerned, a legal responsibility, that would be a question for a court. The question of moral responsibility is a proper subject to inquire of the witness.

As to Dr. Sauter’s objection, the opinion of the witness as to medical sentiment in America may be received. The counsel’s objection goes to its weight rather than to admissibility. The witness could be asked if he is aware of the sentiment in America in 1942 and whether it is different from this of the present day or whether it does not differ. The witness may also be asked whether he is aware of the opinion as to medical ethics in other countries or throughout the civilized world. But the objections are both overruled.

MR. HARDY: It is your opinion, then, that the state cannot assume the moral responsibility of a physician to his patient or experimental subject?

WITNESS DR. IVY: That is my opinion.

Q. On what do you base your opinion? What is the reason for that opinion?

A. I base that opinion on the principles of ethics and morals contained in the oath of Hippocrates. I think it should be obvious that a state cannot follow a physician around in his daily administration to see that the moral responsibility inherent therein is properly carried out. This moral responsibility that controls or should control the conduct of a physician should be inculcated into the minds of physicians just as moral responsibility of other sorts, and those principles are clearly depicted or enunciated in the oath of Hippocrates with which every physician should be acquainted.

Q. Is the oath of Hippocrates the Golden Rule in the United States and to your knowledge throughout the world?

A. According to my knowledge it represents the Golden Rule of the medical profession. It states how one doctor would like to be treated by another doctor in case he were ill. And in that way how a doctor should treat his patient or experimental subjects. He should treat them as though he were serving as a subject.

Q. Several of the defendants have pointed out in this case that the oath of Hippocrates is obsolete today. Do you follow that opinion?

A. I do not. The moral imperative of the oath of Hippocrates I believe is necessary for the survival of the scientific and technical philosophy of medicine.

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2. GERMAN MEDICAL PROFESSION

a. Introduction

The position of the German medical profession under the Hitler regime was the subject of argument by both prosecution and defense. The prosecution discussed the matter in the early part of its opening statement (vol. I, p. 29 ff.). Selections from the argumentation of the defense on this point have been taken from the final plea for the defendant Blome and from the closing brief for the defendant Rostock. These appear on pages 86 to 90.

b. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BLOME_[26]

* * * * *

Furthermore, I have another matter at heart, especially in my capacity as defense counsel for this defendant: Blome was Deputy Reich Physicians’ Leader; he will, therefore, to a certain degree, easily be regarded as the representative of the German medical profession during the Hitler regime. Now, there is great danger that the entire German medical profession will be identified with its former leader, Dr. Conti, and with the crimes he was charged with during this trial; the German medical profession fears that those crimes which, _in fact_, were committed by _individual_ doctors, who may have been rightly charged, are to be taken as typical of the entire medical profession. Indeed, during the last months we could hear in the press and on the radio that the entire medical profession was here in the prisoners’ dock; unfortunately, by thus generalizing, the matter was presented as though the entire medical profession was corrupt and that the majority of German physicians had committed such crimes or at least approved them, as stated here in the indictment at the trial. This conception is wrong and unjust. The German medical profession numbered about 80,000 members and if we add the Wehrmacht physicians and the official physicians, one arrives at about 100,000 physicians. Now let us compare with this total number the small number of physicians and researchers here in the dock. There are altogether 20 men. Of what importance is such an insignificant number for the judging of the entire profession? If out of 5,000 German physicians one single person committed a crime, it is impossible to draw a conclusion from these few exceptions regarding the behavior and morals of the whole class. And even if we suppose that perhaps another few hundred physicians and researchers not here in the dock had taken part in the “experiments on human beings” and in the “euthanasia action”, the number of guilty persons in comparison with the total number of the entire profession is still too small to entitle one to consider the entire profession as criminal, and morally inferior because some individuals committed a wrong.

There is yet another point of view. It stands to reason that not all experiments on human beings can be excused and justified, not even during a time of total warfare and under a dictatorship, and no decent person would ever think of excusing the way and manner in which the Hitler State carried out the “Euthanasia Program.” However, it is an incontestable fact that large-scale experiments on human beings cannot altogether be avoided and are, in fact, carried out throughout the whole world, and that there are different viewpoints concerning the problem of euthanasia, even to a limited extent in the circles of conscientious physicians when this is carried out on a proper legal basis, and when, in addition, full precautions are taken to prevent abuses. It must not be overlooked that the deterioration of the medical profession claimed in connection with this trial is connected exclusively with the problem of experiments on human beings and with euthanasia, but that no accusations are made against the professional practice of the German physicians in any other respects; there are especially no accusations referring to the relationship between the sick patient and the physician whom he had chosen as a helper and confidant to restore his health. This confidence in the attending physician felt by the patient has remained completely untouched by this trial.

We Germans have our own opinion about our physicians, we know their conscientiousness and willingness to render help; especially during the war we have been able to observe and appreciate their readiness to sacrifice themselves; we know that the good qualities that made the German physicians and researchers a model in former decades were not lost during Hitler’s time, and it would be a pity if the abuses, which have been revealed and proved by this trial, should serve to undermine the confidence of the German people in their physicians and expose them to the contempt of all civilized nations.

Individual researchers, who out of ambition or a passion for research did not value a human being’s life more than that of a rabbit, should not be considered representative of the German physicians’ profession, nor should those physicians of the concentration camps, who for lack of a conscience or for some other wicked reason gave fatal injections to prisoners or tortured them to death, be regarded as representative of the German medical profession. No. Representative of a model German physician during Hitler’s time, too, is the non-political, practicing physician, who, even if he did perhaps formally belong to the Party, strongly opposed from the bottom of his heart all kinds of violence and intolerance, who is closely bound to his nation and its needs, the practicing physician who cared for his patients in the most devoted manner day after day and night after night during the time of total war and fearful bombardments, which is especially hard for a physician; or who as military physician served at the front far from home, from his practice, from his family, fairly sharing all the hardships, dangers, and privations with his soldiers. And the surgeon who, as director of his clinic, operated and cured and helped from morning till night wherever he could help without having time to breathe, let alone to take part in political activity, he also is representative of the model German physician during Hitler’s time too.

I do not know what verdict you will arrive at respecting one or the other of these defendants; but, as defense counsel of the former Deputy Reich Physicians’ Leader, I beg you to make it clear by your verdict that in judging the defendant, if you must condemn him, you do not condemn and defame the entire German medical profession, but that the abuses which were committed were individual acts such as, perhaps, happened in all professions during Hitler’s time without necessitating a condemnation of the entire profession. These were individual acts arising perhaps partly from personal criminal tendencies of individual fanatics, partly from being connected with the excesses of a total war in a dictatorship of unscrupulous violence.

If beside the 23 defendants there is a 24th sitting in the dock, invisible to our eye, he is not of the German medical profession but the SS spirit of Himmler and of a dozen other murderers of millions of people. This spirit might have led a fanatic to forget his professional ethics and to commit crimes. But the entire medical profession remained sound and conscious of its duty.

May your verdict not completely rob the German people of their confidence in their physicians but restore it to them, and I have no doubt that after the present crisis has been overcome and in more normal circumstances, the German medical profession will prove to its people that as a body it never forgot nor will ever forget the professional ethical commandments of the Hippocratic oath.

* * * * *

_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT ROSTOCK_

_Introduction_

Mr. President, your Honors:

The great English historian and sociologist, Thomas Carlyle, once said, “Your life, and were you the humblest of human beings, is not a wild dream but a lofty fact.” I do not want to speak to you in this courtroom without first recalling this saying and thereby seeing before my eyes the picture of the great number of our fellow human beings whose lives have really become a wild dream. The fact on which this trial is based, that defenseless human beings were used by doctors of my country for experiments and in part died after suffering tortures, cannot be denied. I, myself, would doubt the clarity of my judgment as a German jurist if I did not realize that general human rights, such as the fundamental standards anchored in all civilized nations, have been violated thereby. Medical science should bring help and healing to suffering humanity. I am proud to state that it was German doctors who, in the last century, saved millions of human beings from the most serious and fatal diseases by their research. Let me remind you only of names such as Robert Koch, Emil von Behring, Paul Ehrlich, Theodor Billroth, and August Bier, or medicines such as Germanin, atabrine, Salvarsan, diphtheria serum, tetanus serum, and many others. If it were possible to achieve such decisive results in any other way, this would only confirm the actual truth, that no one, no matter how highly placed and no matter how important his aims, has the right to lower other human beings to the level of guinea pigs by force. How could a man venture to dispose in that way of the life and health of his fellow men, be they ever so humble? It seems to me that this involves a fundamental contradiction to the duty of the doctor, a violation of the dignity of the individual, and a presumption which cannot remain without horrible results. There may be doubtful cases, there may be borderline cases, but the solution of these questions can be based on only one principle, which is that all creatures in human form have an equal right to life and health. Humanity would be in a sad state if again and again there were not volunteers from the ranks of physicians and laymen who made themselves available for experiments, conscious of their contribution toward saving and healing other human beings. But how can a man dare simply to designate others to suffer and die, when they, too, like to live and be free from want and fear, just like he himself? * * *

3. MEDICAL EXPERIMENTS IN OTHER COUNTRIES

a. Introduction

The practice of medical experimentation upon human beings in other countries was brought out by the defense in an effort to show that the medical experimentation in which these defendants engaged was not criminal. Extracts from the argumentation of the defense have been selected from the closing briefs for the defendants Karl Brandt and Ruff. These appear below on pages 90 to 93. From the evidence on this question, the following appear below on pages 95 to 121: Selections from defense documents, followed by extracts from the cross-examination of one of the prosecution’s expert witnesses Dr. Andrew C. Ivy and an extract from the cross-examination of the defendant Rose.

b. Selections from the Argumentation of the Defense

_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT KARL BRANDT_

* * * * *

Reference has furthermore been made to the _extraordinarily large number of persons_ available _for experiments_. With regard to the experiments made and on the basis of the evidence of this trial, experiments on a large scale have been made only in rare cases, and these may be compared in size with experiments on a large scale outside of Germany, as they were made even in peacetime; reference is made once more to the malaria experiment. (_Karl Brandt 1, Karl Brandt Ex. 1._)