Since all archives and documents centers are exclusively in the hands of the American Prosecution authorities, the Defense is at a disadvantage here. The entire correspondence of Rostock's office has been confiscated by the Americans. I may at least point out at this point that if there were any document there which threw even the slighest shadow on Rostock's character, it would have been presented here. Thus I can state: There is no such document from the hand of Rostock. The simple reason for this is that Rostock simply had no knowledge of any crimes nor did he participate in them in any way. If the Defense, were able to present Rostock's files and letters from that time to the Tribunal, we would find therein many statements by Rostock which would show his ideal efforts in the service of his science and his patients. It would become obvious that Rostock in conduct and character was one of us who believe in the progress of humanity through kindness, mutual respect, and tolerance.
Only the detailed presentation of evidence in this trial has brought clarity. As I have explained, it has shown the complete innocence of the Defendant Professor Rostock. The unjustified indictment means for him the most serious defamation in his position in society and in science.
I should here like to call the attention of the Tribunal to one point in which view point and effect on the public in America and Germany differ. In contrast to the American procedure, in German criminal procedure a trial is opened for such crimes as are under indictment here only when the prosecution material has already been examined by a court officer. This is the institution of the so-called examining judge, who, in major cases, decides when a court trial is to be opened. For all crimes there is also a judicial examination of the prosecution material before the court trial opens, and only when there are strong grounds for suspicion is the trial opened for judicial decision.
This procedure brings it about that the public can assume in such trials that the indictment is, with a high degree of possibility, based on fact. This means that for a man who has once been involved in such a trial it is later extremely difficult to find honor and respect among his fellow citizens. The defendant Rostock would therefore be grateful to you, Your Honors, if in the formulation of your judgment you could help to make it possible for him to resume his place in the circle of respected persons.
With the pride of a clear conscience and with confidence Rostock awaits the judgment of this Tribunal. According to the results of the presentation of evidence, I am convinced that it is my duty to ask that Professor Paul Rostock be fully acquitted.
THE PRESIDENT: Before proceeding with further argument the Tribunal will be in recess.
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal understands that the translation of Dr. Seidl's argument, as attorney for defendants Gebhardt, Fischer and Oberhauser, are all prepared. The Tribunal will now hear from Dr. Seidl as attorney for the defendants named.
DR. SEIDL: Dr. Seidl, attorney for the defendants Gebhardt, Oberhauser, and Fischer.
Mr. President, your Honor, if I may draw you attention to the index of the final plea for the defendant Gebhardt, you will find that there are 31 points. The first three points deal with the count of Indictment I, which is common plan or conspiracy. As the Tribunal has already arrived at a decision as to these parts, I will not deal with this part of my plea, and shall come straight to this point.
I would like to draw the attention of the Tribunal to pages 11 to 16 because I have examined there the factual and legal effect of a document, which is Prosecution Exhibit 460. It is the order of Himmler, 15 May 1944, under which a special assignment was given to the defendant Karl Gebhardt within the Medical Service of the Waffen-SS.
I now turn to point four which begins on page 26.
(4) WAR CRIMES AND CRIMES AGAINST HUMANITY COUNTS II AND III.
In the Indictment the medical experiments carried out for the benefit of the German Wehrmact represent an independent group that has nothing to do with the other actions forming the subject of the indictment. The defendant Karl Gebhardt is charged with being especially responsible for these experiments and with participating in them.
The hearing of the evidence has proved that the defendant Gebhardt evidently had nothing at all to do with some of these experiments. With regard to other experiments, the Prosecution submitted some documents which do not let us discern any immediate participation of the defendant Gebhardt in these experiments, but which show that he learned of them after they had been carried out.
The focal point of the indictment and evidence, in so far as they concern the defendant Rebhardt, are the experiments which were carried out in the concentration camp Ravensbruck in 1942 and the aim of which was to determine the effect of the so-called sulfonamides in connection with wound infections.
The Sulfonamide Experiments (Count II of Indictment, Art. 6 Section E and Count III of Indictment, Art. 11.
First of all, I wish to remark here that the assertion of the prosecution, list this state of affairs had played a part in the Hamburg trials against Sclidlauski and Freitzhi is essentially incorrect. The accusations which were made in those proceedings against the defendants have nothing essential to do with the subject of this trial.
For all medical experiments forming the subject of the indictment, the experiments for testing sulfonamides were undoubtly the most directly connected with the war. The problem of wound infection in every war and especially in modern warfare, is one with which every nation at war must concern itself. This problem is not only one of great importance to the life and health of the individual wounded soldier but it may have a decision effect on the strategical position and on the outcome of the war itself through the resultant gaps in the ranks. Already the first world war has shown that the majority of soldiers do not die on the battlefield itself and that in most cases death is not the direct result of a wound, but that the heavy losses must be attributed to infection of wounds received. These experiences have been confirmed in the second world war and the special conditions prevailing in Russia and the climation conditions due to the winter there have shown even more than in the first world war that wound infection was a medical and tactical problem of the highest importance for the troops and their health. As regards details, I refer to statement made in this connection on the witness stand by several defendants in these proceedings in answer.
Consequently it could not come as a surprise that in this war also efforts were made to deal with wound infections not only by using surgical measures, but that a way was sought to prevent the formation and the spreading of bacterial infections or at least to confirm them, within reasonable limits, by using chemical preparations.
Such efforts seemed the more called for as the war in the East not only meant an immense strain for the resources in material and personnel in general, but also in view of the fact that especially the supply of the army troops and the Waffen SS with medical officers and, above all, with trained field surgeons became more and more difficult. Had it been possible to assist the field medical officers at the front and at the main dressing stations, with a reliable and effective chemo-therapeutic preparation against bacterial wound infection, a progress of vast importance would have been achieved.
On the other hand, however, it could not be overlooked that the introduction of a not safely operating chemo-therapeutic preparation involved a certain amount of danger for an effective medical care of the wounded and consequently for the war potential of the German Wehrmacht and its striking power. In his lecture on the chemo-therapy of wound infection as delivered before the first conference East of the consulting specialists on 18 May 1943 and which I submitted as part of the report dealing with this conference, i.e., as Exhibit Gebhardt No. 6, Professor Dr. Rostock referred to the great danger of chemo-therapy, i.e. the possibility "to induce neglectful physicians to be careless in the surgical execution of the wound dressing, since they may place a certain trust in chemo-therapy".
This warning was all the more in order since, at that time, not only a complete uncertainty existed as regards the effects of sulfonamide, but also because there was a divergence in the opinions as the efficacy of this preparation. It has been clearly shown by the evidence that, in spite of close observation of the effects of sulfonamide in peace times and in war, it was impossible to answer this question. The opinions were very much divided. While some were convinced of the efficacy of these preparations in connection with wounds infections and ascribed extraordinarily good results to them, others were of the opinion that these chemical preparations could at the best be used supplementary and that they, if used by themselves, did hot have the properties to prevent bacterial infections resulting from combat wounds.
With regard to the details I refer to the statements of the defendants Karl Brandt, Handloser, Rostock, Gebhardt and Fischer and to the Exhibits Gebhardt, Nos. 6, 7 and 10 as submitted by me during the hearing of the evidence.
In this respect, it is highly interesting to review the scientific discussions of the consulting specialists as contained in the report on the first conference East on 18 and 19 May 1942. These discussions which took place prior to the sulfonamide experiments comprising the subject of the indictment give a true picture of the situation as it was at that time with regard to the efficacy of sulfonamides.
In this respect we are able to distinguish three sharply defined groups. In the group, which rejected the chemo-therapeutic treatment of wound infection, Geheimrat Professor Sauerbruch was leading. He emphatically voiced the opinion that these chemical preparations tend to obscure the surgical work and to lead to perfunctory treatment. He demanded that the preparations should be critically tested, that is to say, the test should be made by surgeons experienced in general surgery.
In the other camp there were surgeons who claimed to have obtained extra-ordinarily favorable results in the chemo-therapeutical treatment of bacterially infected wounds. Among them was D. Kruegar, the Berlin professor for surgery, who claims to have observed a favorable effect of sulfonamide in an many as 5000 cases.
To the third group finally, belonged the surgeons, bacteriologists and pathologists who took the view that nothing definite could be said as yet as to the effects and the efficacy of sulfonamides as agents in the fight against bacterially infected wounds and that further tests along these lines would have to be made.
Thus it can be said that after the experiences of the Russian winter campaign of 1941/1942, the fight against the bacterial wound infection and the question of the efficacy of the sulfonamides had become a militarymedical and medical-tactical problem of first importance about which opinions differed widely.
A solution of this problem was the more urgent as an answer had to be found quickly, and on the other hand the fact was not to be disregarded that the experiences gained during nearly ten years of peace and war in clinics as well as in laboratories were insufficient to answer this question.
(6) The Order for the Execution of these Experiments.
The evidence has shown that the order to ascertain the effectiveness of the sulfonamides in experiments on human beings, was given directly by the Head of the State and Supreme Commander of the Wehrmacht. Hitler's order was not submitted at first by Himmler to the defendant Gebhardt, but to Dr. Grawitz, Reich physician of the SS and Police.
However, the evidence showed further that another circumstance arose which at least from the point of view of time caused the order for these experiments to be given, viz. the death of the chief of the Reich Main Security Office General of the Waffen SS Reinhardt Heydrich, who in May 1942 was assassinated in Prague. As to the details I refer to the the statements made by Gebhardt in the witness box concerning this matter. Heydrich's death is connected with the experiments themselves only insofar as, at that time, the reproach was made, that Heydrich's life could have been saved, if sulfonamide and especially a certain sulfonamide preparation had been administered to the wounded men in sufficient quantities. The whole problem of sulfonamide therapy came to the foreground once more in this one case and that in such an obvious manner that the Head of the State himself gave the order to clarify by way of all-out experiments the question, which for a long time already had been of general importance for the fighting troops at the front.
Within the scope of this evaluation of evidence it is irrelevant to enter into the details, which brought it about that the experiments were carried out by the defendant Gebhardt himself. Against the strict order of the Reich physician SS Grawitz, Gebhardt carried out the experiments not by artificially producing bullet wounds but by causing an infection under observation of all possible precautionary measures.
It was further shown by the evidence that the experiments were started with fifteen habitual criminals who had been sentenced to death and who had been transferred from the concentration camp Sachsenahusen to Ravensbrueck. In view of the fact, that this part of the experiment is not a subject of the indictment, it seems to be unnecessary to enter into this matter. It should, however, be kept in mind that at the conference on 1 June 1943, at which the conditions for the experiments were determined in detail - the defendant Gebhardt has described this conference in detail and I am refering to this - it was understood that the experiments should be carried out with male habitual criminals, who had been sentenced to death and who were to be pardoned in case of survival.
(7) The Experimental Arrangements for the Sulfonamide Experiments.
It was shown by the evidence that the experiments for testing the effectiveness of the sulfonamides were carried out in three groups. The first group included fifteen men. This group has nothing to do with the subject of the indictment and it is therefore superfluous to enter into this matter more closely.
The second group included thirty-six female prisoners, who had been members of the Polish resistance movement and who, for this reason, had been sentenced to death by the German Court Martial in the Government General. This second group was sub-divided into 3 sub-groups of 13 experimental persons each. As to the particulars of the provisions for the experiments, I refer to the statements made by the defendants Gebhardt and Fischer in the witness box. Contrary to the first group, contact substances were used in this second group to accelerate the process of infection. The contact substances were inserted into the open wound together with the germs. Sterile and pulverized glass and sterile wood particles were used for contact substances. These contact substances took the place of earth and uniform particles and had the purpose of producing war-like conditions for the wounds, without, however, producing at the same time, the general dangers created by infection of the wound by earth and parts of clothing.
As in the case of the first group, staphylococci, straptococci, a gas gangrene bacilli, were used as agents. But the contention set forth in the indictment that tetanus germs were also used, is incorrect. On the contrary, the evidence has proved that the treatment of tetanus did not come within the scope of these experiments. There was less reason for this as it was realized long ago by German military surgery that the sulfonamide preparations are not suitable for the effective prevention of traumatic tetanus. Here I refer to the directives for the chemo-therapeutical treatment of wound infection which were issued at the First Working Congress East of the Consulting Specialists in May 1943 (Gebhardt Exhibit No. 6) - that is; prior to the performance of the sulfonamide experiments consulting the subject of this indictment. In these directives it is expressly pointed out that the outbreak of traumatic tetanus cannot be prevented by means of the sulfonamides and that tetanus anti-toxin has to be administered as usual.
In the course of the evidence only the witness Dr. Maczka has maintained that tetanus was actually used in one individual case. This witness did not make her own observations of the case, but has drawn conclusions based exclusively on the pathological picture demonstrated by one of the experimental subjects according to her statements. In view of the fact that even according to the testimony of this witness tetanus bacilli were employed only in one individual case, the assertion of this witness can hardly be taken as a true representation of the facts, for if it had really been the intention of the defendant Gebhardt to determine the effect of sulfonamides also on tetanus, one experimental subject would certainly not have been sufficient, and more experiments would have been necessary before a final decision regarding this question could possibly have been made.
The third group consisted of twenty-four experimental subjects who were not treated with any sort of contagion -- unlike the procedure applied to the second group - but only had part of the muscle ligated. The defendants Gebhardt and Fischer have given detailed evidence regarding these new experiment arrangements, how they originated, which consideration had to be regarded and what part was played by SS Reich Physician Dr. Grawitz.
With regard to these details I refer to the statements made by the defendants in the witness-box.
The experimental subjects were treated with sulfonamide in the way described by the defendants in the witness-box. A few persons were not treated with sulfonamides but were used as control subjects. But that did not mean that these persons were not treated at all. As the evidence has proved, all experimental subjects were treated, namely by surgical measures if the sulfonamides did not prove effective against the inflammation. For this reason also the experimental subjects to whom no sulfonamides were applied, and with whom the inflammation did not pass away of itself, were given direct surgical treatment under observance of the generally recognized principles of surgery particularly as developed in Germany by Gebhardt's teacher Professor Dr. Lexer. This direct surgical treatment resulted in the scars, which the court has seen on the experimental subjects questioned as witnesses. As explained by Professor Dr. Alexander, the expert produced by the prosecution, these scars are the result not of the bacteriological infection but of the operations performed in order to eliminate this infection. For the case of the prosecution four experimental subjects have been called to give evidence. In addition, the prosecution has submitted in Document Book No. 10 a series of affidavits given by other persons used as experimental subjects. The statements of the four witnesses questioned in court coincide largely with the testimony given by the defendants Gebhardt, Oberhauser, and Fischer themselves in the witness-box. For this reason alone, it appears expedient and sufficient for the pronouncement of a just sentence and for the establishment of the true facts to base the sentence exclusively on the testimony of these four witnesses together with the statements of the defendants themselves. This is not only in accordance with the principle of direct and oral proceedings in court prevailing in any modern criminal procedure.
FINAL PLEA FOR DR. KARL GEBHARDT and which should not be departed from without urgent reason, but also such handling of the case seems suitable because the statements of the four witnesses are identical essentially so that they themselves, together with the statements given by the defendants, can be regarded as a safe basis for a finding - apart from one point which I shall go into later.
Add to this that the affidavits submitted by the Prosecution not only differ in essential points from the statements made by the witnesses in court, but they are inconsistent and contradictory in themselves as well. This is represented, above all, by the fact that in several of these affidavits quite obviously contentions were made which are not based on personal and factual observation, but have become known to these witnesses by hearsay. The affidavits, moreover, fail to represent the circumstance in clear c h r o n o l o g i c a l order, which makes the whole matter the more doubtful as it was proved through the taking of evidence that in the Ravensbrueck Camp obviously experiments were also performed by other physicians with whom the defendant of this trial had no connection.
Considerable doubts also exist regarding the statements made by the witness Dr. Maczka. The Prosecution has submitted two affidavits given by this witness as part of its documentary book 10. When questioned in court, this witness could not maintain the contentions which appeared in the two affidavits as most incriminating. Under these circumstances, it has to be considered whether the court regards the statements of this witness as sufficient to be drawn into the determining of the judgment. I want to answer this question in the negative, and finally not only because she had to revoke the most essential points of her previous affidavits, but because a large part of her testimony was based not on her own observations, but either on information obtained from other prisoners or also on conclusions drawn by her.
THE PRESIDENT: Counsel, I call your attention to the fact that while you as the representative of three defendants have three hours to present the arguments for the three defendants, you have not three hours for any one defendant, but only one hour for each of the defendants. It would be a little helpful if you would speak in a little lower tone counsel.
DR. SEIDL: Your Honor, as all three of the defendants are concerned with sulfanomide experiments, in the case of the defendant Gebhardt I have consolidated the fundamental questions and it will be possible for me then in the later speeches for the defendants Oberhauser and Fischer to base my statements on previous argument. I have furthermore, not read everything which was contained in my final speech but only parts.
THE PRESIDENT: Very well, counsel. You may proceed.
(8) The Legal Status of the Experimental Persons In the second and third group, inmates of the Ravensbrueck Concentration Camp who had been sentenced to death by German Courts Martial in the Governments General as members of the Polish resistance movement were employed as experimental persons.
The witnesses questioned in court and all experimental persons from whom the prosecution has submitted affidavits, have openly professed their membership of the resistance movement, to which has to be added that some of them exercised relatively important functions in the resistance movement. If the legal status of the experimental persons at the time of their activity in the resistance movement is examined, the result will be as follows:
The former Polish State ceased to exist at the latest on 28 September 1939 as an independent subject from the point of view of International Law. After the entire area of the former Polish State had been occupied by the German armies and the troops of the Soviet Union and the Polish Government had gone over into Rumanian territory under pressure of the invasion of the Red Army on 17 September 1939, the two occupation powers decided to carry out a plan previously agreed upon, which was to settle all matters concerning the territory of the former Polish State without interference of any other powers.
This was brought about by the German-Soviet Boundary and Friendship Pact of 28 September 1939, which I have presented as Exhibit Gebhardt No. 13. As to particulars, I refer to the contents of the pact. It was on this day, at the very latest, that Poland ceased to exist as a sovereign state and as bearer of rights and duties. Due to war, the former Polish State ceased to exist as a state and therewith as a subject from the point of view of International Law.
The territory of the former Polish State, insofar as it fell within the sphere of Soviet interests, became part of the USSR, to which it still belongs today.
The Polish territory which fell into the German sphere of interests and which is designated in detail in the Supplementary Protocol to the German-Societ Boundary and Friendship Pact, became either part of the German Reich or - and this concerned the larger part of the area - was made into an independent borderland of the German Reich under the designation Government General. The constitutional laws governing this territory were based on the decree issued on 12 October 1939 by the Fuehrer and Reich Chancellor for the administration of the occupied Polish territory. I have presented the decree to the Court as Exhibit Gebhardt No. 14. In Article 4 of this decree it is stated that polish law was to continue to be valid insofar as it was not at variance with the taking over of the administration by the German Reich. Article 5 gives the Governor General the right to issue laws by ordinance for the territory under his administration.
Corresponding to the generally acknowledged principles of international law the ordinances issued by the Governor General were binding for the population of this territory. This is especially true of the ordinance for combating deeds of violence in the Government General, which was issued on 31 October 1939 (Ordinance Gazette for the Government General, page 10), and which also laid the foundation for the competence of the courts-martial. This ordinance had become necessary because the Military Government which had been active until 26 October 1939 ceased to exist when the Fuehrer decree of 12 October 1939 became valid.
In this connection, the following must be replied to the objection of the Prosecution in their final plea on the morning of the 14th.
First: There did not exist a Polish Government at the time when these experimental subjects were active for the resistance movement in 1940 and 1941. The Polish Government had ceased to exist as an independent subject under international law. The Government in exile in London under General Siborski and the government in Lublin were only later on recognized by the Western Allies.
Second: At the time when the experimental subjects in 1940 were active for the resistance movement no Polish army existed which was still active in battle.
Third: The Prosecution seems to try to express that this Military Tribunal should not primarily apply territorial penal law but the principle of the international law. For this very reason the Prosecution has pointed out that the jurisdiction and the judicial authority within the Government General were the consequence of an aggressive war and could, therefore, not be legally recognized. This concept does not apply. It has to be pointed out first that the principles of international law, which have the task of regulating legal issues during the war, do not differentiate to in any way as to whether it is an aggressive war or a defensive war or whether it was justified at all.
That is said especially in the fourth Hague Convention of 1907, the so-called Hague Land Warfare Convention.
The objection of the Prosecution is not justified for another reason. The evidence before the IMT showed that the attack on Poland was carried out by Germany at least in the same manner as it was carried out from the USSR and that this becomes quite evident from the contents of the German-Soviet secret treaty of the 23 August 1939. Nevertheless the USA did not hesitate to recognize territorially the claims made by the USSR, in the area of the former Polish State. Now this recognition happened to take place as well de facto as de jure during the conference at Yalta in February 1945 and at the conference at Potsdam on the 2nd August 1945.
The Prosecution therefore today cannot object to this state of affairs as far as the legal issues from this attack are concerned.
The ordinance for combating acts of violence in the Government General and the introduction of the courts-martial connected with it would, by the way, have been permissible, even if the former Polish State had not ceased to be, through war, a subject in the realm of International Law. Military occupation of foreign States (occupatio bellica), too, gives the occupying power the right to take all the measures necessary for the maintaining of order and safety. It is a generally acknowledged legal conception that in this case the occupying power takes over the power of the conquered state, not as its deputy, but rather by authority of their own laws guaranteed by international law. This right is expressly acknowledged in the third section of the Hague Convention for Land Warfare. There can be no doubt that the introduction of courts-martial is one of these rights of the occupying power. In fact it seems unthinkable that an occupying power should not be allowed to take measures for the effective fighting of a resistance movement, whose only and openly admitted purpose it was to undermine and destroy the authority of the occupying power and the safety of the occupation troops.
The right to do this can even be less contested in our case. Since with the outbreak of the German-Soviet war, the territory of the former Government General became the largest military transit area, which has ever existed in the history of war. The methods by which the Polish resistance movement tried to attain its goals do not need to be examined here in detail. It is sufficient to point out that the resistance movement was in a position to interfere to a considerable degree with the reinforcements of the German Armies in their fight against the Red Army, that this happened through the blasting of bridges, through transmission of important military information by any other ways imaginable.
The Polish women who were used for the sulfonamide experiments were members of this resistance movement and they supported this movement wherever they could. However much we respect the courage and patriotism of these women, we cannot refrain from emphasizing the fact that they broke laws which at that time were binding for them and which gave the occupation power the right to impose adequate punishment upon them. It seems unthinkable that the members of a resistance movement such as the Polish one would not have been sentenced to death during the war for their activities in this movement by any other state which found itself in a position similar to that of Germany at that time. The newest developments show that the occupation powers which are now occupying Germany do not hesitate to impose, in similar cases, the most severe penalties.
For example, the American Military Government for Germany in its Ordinance No. 1, which was issued to insure the safety of the Allied armed forces and to re-establish public order in the territory occupied by them, lists, among others, the following acts as crimes punishable by death:
"(3) Transmission of information endangering the safety or property of the Allied Forces or neglecting to report immediately information possession of which is prohibited.
"(13) Disturbance of transport and communications or of the functioning of public utilities or supply services.
"(20) Any other offense against the laws and practices of war or any assistance to the enemy or endangering of the safety of the Allied Forces."
A comparison of these regulations with the contents of the court martial regulations of the Governor General for the Occupied Polish Territories, presented in Document Book II for the defendant Gebhardt, shows clearly that here generally the same facts were declared to be punishable with the death sentence.
In order to exclude any doubts with regard to the legal status of the experimental subjects, it may finally be pointed out that the members of the Polish resistance movements, at least at the time during which the prisoners belonged to them, did not fulfill the conditions of Article I of the Hague Convention for Land Warfare of 1907 concerning militia and voluntary corps not affiliated with the army and having a certain military organization. The Polish resistance movement at that time 1) had no leader who was ostensibly at its head and was responsible for the conduct of the members; 2) it wore no particular badge recognizable from a distance; 3) it did not wear their arms openly and finally; 4) in its conduct of war it disregarded the laws and practices of war. In view of these facts the members of the resistance movement could not have been treated as prisoners of war even if at that time there had still been a Polish army at the front. In view of the fact that the prisoners in question were women serving in the communications and espionage branches of the resistance movement, this possibility was eliminated from the very beginning. Further objections raised by the prosecution regarding the legal status of these experimental persons I refer now to my trial brief.
(9) The Principles of Medical Ethics and the Applicable Law.
During the hearing of the 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 have already pointed out in the case of these defendants that 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. An act offending the recognized principles of medical ethics does not necessarily constitute a crime. The unwritten regulations and convictions existing inside a profession cannot be used as a basis for verdict, but only the cogent precepts of the law.
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 also even earlier, numerous experiments on humans were carried out, and, moreover, on persons who did not volunteer for such purpose. In this respect I refer to the statements of the expert Professor Dr. Leibrandt, witness for the prosecution. I furthermore refer to the extensive evidence which the prosecution on their part exhibited in this question from which it appears that in numerous cases experiments were carried out on humans, 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 that 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 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, however, namely, that the state has more and more taken possession of the individual and limited his personal freedom. Evidently that is one of the accompanying facts of technique and modern state mass. It must be added that the development of medicine in the course of the last decades has led to differentiated questions which can no longer be solved with the means of the laboratory and the animal experiments.
The evidence has shown that not only in Germany, and perhaps not even in the first place in this country, the reorganization of the relationship between community and individual has resulted in new methods in the sphere of medical science.