In nearly all countries experiments on humans have been made under conditions which entirely exclude volunteering in the sense of the law.
From this change of medical views, and above all, in the medical practice, immediate consequences for the interpretation of the law arise, since the law, according to its inner state, is universal and in the abstract and naturally does not answer the question as to the limits and under which assumptions experiments on humans are permissible and where the criminality of such an experiment starts. The real practice regarding this question has all the more importance for the interpretation of the law since almost every law and also the Control Council Law No. 10 contain standard rudiments of case facts, which means that in a particular case it can only be established by a judicial judgment. No special proof is needed that the answer to the question as to when and within which 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. The real medical practice within 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 establish a criminal offense. Considering that 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 will not also for this reason overlook the fact that particularly during the last years even outside Germany medical experiments were made on humans who undoubtedly did not volunteer for these experiments. The unity of law and the indivisibility of the idea taken as basis exclude judging one and the same fact according to different legal principles and standards simultaneously.
To the question as to whether the defendants in the carrying out of the experiments which constitute the indictment have first of all been acting 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 workers, I shall give my opinion on at some later opportunity.
(10) The Agreement by the Experimental Persons as Legal Justification.
I shall now deal with the reasons for the exclusive of injustice and guilt, which according to the result of the evidence preclude the culpability of the defendant's demean. 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 demean and to exonerate him from the offense in the sense of a personal reproach 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 sulfonamides 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.
Members of the Polish resistance movement belonged to the second and third group, 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 practi cally all legal systems.
Consequently, the question is to be examined whether the experimental persons have given 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 persons have expressly declared their consent. However, if generally acknowledged principles are applied, one may presume that they have expressed their consent in some obvious manner. It is clear that the 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 the execution in any other way, that they nevertheless did consent to the experiments, however quietly. This supposition would correspond 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.
(11) The Presumed Consent of the Experimental Subjects as Legal Justification.
The illegality of an action is not only then excluded 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 jurisprudence and also in jurisdiction to do justice to this situation which so often occurs in practice.
Not all of these theories need have to be discussed since the decisive points of view have now been clarified. At first it was tried to settle this question by applying the law referring to unauthorized acting for and on behalf of a person. Serious objections were raised against this transmission of conceptions of civil law into criminal law. The criminal idea of consent is to be extended instead into the 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 would have 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 jurisdiction 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 sulfonamide 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 full knowledge of the position and the certainty of their eventual execution there can be, according to my opinion, 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 concentration camp in Ravensbrueck awaiting the confirmation of the verdict which was given by the Governor General of the occupied Polish district, (I shall refer to these experiments in my closing brief and I shall also refer in the reply to the closing brief of the prosecution) only after a complicated and protracted procedure -- were really shot. Their participation in these medical experiments was the only chance for the 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 would have known of the forthcoming execution would not have given their consent for the experiments.
(12) The State Emergency and War Emergency as Legal Excuse.
The evidence proved furthermore that the experiments for the testing of the effectiveness of sulfonamide were necessary to clarify a question not only of decisive importance for the individual soldier and the troops at the front but that this was also a problem which did not only affect the care for the individual but was of vital importance for the fighting power of the army, and thus for the whole fighting nation. All efforts to clarify this question by studying the effect of casual wounds failed. Although drugs of the sulfonamide series -the number of which amounts to approximately 3000 -- had been tested for more than 10 years, it was impossible to form an even approximately correct idea of the most valuable remedies. It was impossible to clarify this question in peace by observation of many thousands of people with casual wounds and by circularized inquiries. Nor could a clear answer to this question of vital importance to many hundred thousand soldiers be found by observation of the wounded in field hospitals during the war.
In consideration of the evidence it is impossible and also unnecessary to examine details of the problem of wound infection and its control in modern warfare. I may assume that the importance of this question is known to the court and need not be proved any further as this question did not only play a part in the German army but was a matter of special research and measures in the armies all over the world.
In 1942 these conditions in the German army and in the medical services of the Wehrmacht became intensified only insofar as with the beginning of the campaign against the Soviet Union new difficulties arose also with regard to this question. If in the campaigns against Poland and France it was possible to master the wound infections by the usual surgical means, the difficulties in the war against the USSR increased beyond all measures. It is unnecessary to examine the reasons for this more closely here. It is clear that they resulted from great distances and poor traffic conditions, but they were also caused by climatic conditions prevailing there.
The fighting power of the German army was affected by its severe casualties to an extent which made it impossible to allocate a correspondingly large number of experienced surgeons to the main dressing stations to control bacterial wound-infection by surgical measures.
During the hearing of the evidence the difficult situation in which the German armies found themselves in the winter 1941-42 on the front before Moscow and in the South around Rostow, was repeatedly stressed. Here it was demonstrated clearly that the German Wehrmacht and with it the German people were involved in a life and death struggle.
The leaders of the German Wehrmacht would have neglected their duty if they, confronted with these facts, had not made the attempt to decide, at any price, the question as to which chemical preparations were capable of preventing bacterial wound infection and, above all, gas gangrene, and whether effective means could be found at all.
"Whatever the answer to this question may have been, it had to be found as soon as possible in order to avert an imminent danger and to throw light on a question which was important to the individual wounded soldier as well as to the striking power of the whole army. After the failure of all attempts to solve the problem through clinical observation of incidental wounds and through other methods, and, in view of the particularly difficult situation and especially of the pressure of time, there was, nothing left but to decide the question through an experiment on human beings. The responsible leaders of the German Wehrmacht did not hesitate to draw the conclusions resulting from this situation, and the head of the German Reich who was at the same time Commanderin-Chief of the German Wehrmacht, gave the order to reach a final solution of this problem by way of a large scale experimentation.
Let us examine the legal conclusions to be drawn from this situation as it existed in 1942 for the German Wehrmacht and therefore for the German state -- in particular regarding the assumption of an existing national emergency.
The problem of emergency and the particular case of self-defense has been regulated in almost all criminal codes in a way applicable only to individual cases. The individual is granted impunity under certain conditions when "acting in an emergency arising for himself or others individually". It is recognized, however, in the administration of justice and in legal literature that even the commonwealth, the "state" can find itself in an emergency, and that acts which are meant to and actually do contribute to overcome this emergency may be exempt from punishment.
1) First of all, the question has been raised whether the conception of self-defense, conceived to cover individual cases, can be extended to include also a state self-defense, meaning a self-defense for the benefit of the state and the commonwealth. The answer to this question has generally been in the affirmative. 2) The same reasoning, however, as applied to self-defense is also applicable to the conception of emergency, as embodied e.g. in Section 54 of the German Penal Code and in almost all modern systems of criminal law.
These provisions, too, are originally conceived to cover individual cases. But, using them as a starting point, the literature and the administration of justice arrive at a recognition in principle of a national emergency with a corresponding effect with regard to the definition of the concept of an emergency generally given in the penal laws, the application of these provisions to the state, while justified in itself, can be effected in principle only.
When the idea of an emergency is applied to the state and when the individual is authorized to commit acts for the purpose of eliminating such a national emergency, here as in the case of the ordinary emergency determined by individual conditions, the objective values must be estimated. The necessary consequences of conceding such actions on the part of the individual must be that not only is he absolved from guilt, but moreover his acts are "justified". In other words; the socalled national emergency, even though it is recognized only as an analogous application of the ordinary concept of emergency in criminal law, is a legal excuse. But what does "application" in principle to the cases of national emergency mean? Whether a national emergency is "unprovoked" or not, whether, for example, the war waged is a "war of aggression", can obviously be of no importance in this connection. The existence of the emergency only is decisive. The vital interests of the commonwealth and the state are substituted for the limitation of individual interests. Summarizing we can define the so-called national emergency as an emergency involving the vital interests of the state and the commonwealth, not to be eliminated in any other way. As far as such emergency authorizes action, not only may a legal excuse be assumed, but a true ground for justification exists.
How far an erroneously assumed national emergency (putative emergency) is possible and to be considered as a legal excuse, I shall examine afterwards.
Which consequences arise from this legal position in the case of the defendant Karl Gebhardt?
1) As proved by the evidence the general situation in the different theatres of war in the year 1942 was such that it thought about an "actual", that means an immediately imminent danger to the vital interests of the state as the belligerent power and to the individuals affected by the war. The conditions on the Eastern front in the winter of 1941/42 as they have been described repeatedly during the evidence created a situation which endangered the existence of the state, throughthe dangerousness of the wound infection and the threat to the survival of the wounded and the combative force of the troups arising therefrom.
It must be added that the past World War II was fought not only with man and material but also by means of propaganda. In this connection I refer to the statements of the defendant Gebhardt in the witness stand, as far as they are connected with the information given to him by the Chief of Office V of the Reich Security Main Office, SS Gruppenfuehrer Nebe, which shows that just at that time the enemy tried to undermine the fighting spirit of the German troops by pamphlets describing as backward the organization and material of the medical service of the German Wehrmacht, while on the other hand praising certain remedies of the Allied Forces, as for instance penicillin, as "secret wonder weapons".
2) The assumption of a state of national emergency presupposes that the action forming the object of the indictment has been taken with the purpose of removing the danger. By this is meant the objective purpose of the action, not just the subjective purpose of the acting individual. It must be asked, therefore, whether the sulfonamide experiments were an objectively adequate means for averting the danger. This, however, does not mean that the preparations really were an adequate means by which to meet the danger expertly. According to the evidence there can be no doubt that these assumptions did really exist.
3) Finally, there must not be "any different way" in which national emergency could be eliminated. One must not misunderstand this requirement. Not every different way, which also, could have been pursued only by corresponding violations, excludes an appeal to national emergency. The requirement mentioned does not mean that the "way of salvation pursued must necessarily be the only one possible. Of course, if the different possibilities of salvation are evils of different degrees, only the lesser one is to be chosen. It must also be assumed that there should exist a certain proportion between the violation and the evil inherent in the danger. This viewpoint, however, does not present any difficulty in our case. In view of the fact that in the present case many tens of thousands of wounded persons were in danger of death.
According to the evidence there can be no doubt that a "better way" could not have been chosen. On the contrary, it has been shown that in peace as well as in war times everything was tried without success to clarify the problem of the efficacy of sulfonamides. The fact that for experimental subjects prisoners were chosen who had been sentenced to die and to be executed, and to whom the prospect of a pardon was held out and actually granted can here not be judged in a negative sense. This fact can not be used as an argument when examining the legal viewpoint, because participation in these experiments meant the only chance for the prisoners to escape imminent execution. In this connection I refer to the explanations I have already given in connection with the so-called likely agreement.
(13) Special Consideration of the War Emergency as Legal Excuse.
Beside the general national emergency discussed in the literature of i n t e r n a t i o n a l l a w recognizes also a special w a r e m e r g e n c y. According to it: "in a state of self-defense and emergency even such actions are permitted which would be against the laws of warfare and therefore against international law." Different, however, from self-defense and emergency in the sense of international law is the "m i l i t a r y n e c e s s i t y o f w a r" (war-raison) which by itself never justifies the violation of the laws of warfare. E m e r g e n c y and n e c e s s i t y o f w a r however, are d i f f e r e n t concepts. The emergency due to which self-preservation and self-development of the threatened nation are at stake, justifies, according to general principles recognized by the national laws of all civilized countries, the violation of every international standard, ergo also of the legal principles of the laws of warfare. When applying the concepts of self-defense and emergency as recognized by criminal and international law, the illegality of violations committed is excluded if the nation found itself in a situation which by the application of other means could not be relieved.
In this connection the following must be pointed out:
I have already explained before that the experimental subjects on whom the sulfonemide experiments forming the object of this case were performed, came under German jurisdiction, even if he holds the opinion that in the case of Poland it was not a question of genuine "debellatio" but only of "ocupatio bellica". However, of whatever opinion one might be in regard to this question, there can be no doubt that assuming an i n t e r n a t i o n a l e m e r g e n c y the performance of the experiments would have been justified even if at the time of the experiments they still had been citizens of enemy nations.
For the regulating of the conditions of such persons according to international law, the "Order of laws and practices of land-warfare" is decisive which is attached to the Haag Convention of 18 October 1907 regarding the laws and practices of land-warfare. According to what has been said above, however, even a violation of such special conventions, as contained, for instance, in the special prohibitions of article 23, is justified at the time of a genuine war emergency. In view of the fact that the special conditions characterizing a real war-emergency are existent, the objection that citizens of another country should not have been used for the experiments, is invalid.
(14) The Evaluation of Conflicting Rights and Interests as Legal Excuse.
According to well-considered opinions, we must start on the premise that the defendants, both in principle and in procedure, are to be tried according to G e r m a n criminal law. They lived under it during the time in question, and they were subject to it. For this reason I wish to approach one more viewpoint which should be considered independently and in addition to the legal excuses already mentioned, when judging the conduct of the defendants.
For many years the legal provisions for emergency cases have proved inadequate. Theory tried for a long time to fill the gaps with explanations of a general nature, and finally the Reich Supreme Court handed down basic decisions expressly recognizing an "extra legal emergency". The considerations, which they were based are known by the term "objective prin ciple of the evaluation of conflicting rights and interests". In the legal administration of the Reich Supreme Court and in further discussions this principle, to be sure, is combined with subjective considerations of courses of action taken by the perpetrator in the line of duty.
Therefore it is necessary to discuss both considerations - that of evaluating conflicting rights and interests and that of compulsion by duty - together even if we must, and shall, keep them distinctly separated for the time being.
1.) The consideration of an evaluation of conflicting rights and interests as legal excuse is generally formulated as follows:
"Whoever violates or jeopardizes a legally protected right or interests of lesser value in order to save thereby a legally protected right or interest of greater value does not act in violation of the law."
The lesser value must yield to the greater one. The act, when regarded from this point of view, is justified, its unlawfulness - and not merely the guilt or the perpetrator - is cancelled out.
This so-called principle of evaluating conflicting rights and interests first of all a formal principle which establishes the precedence of the more valuable right or interest as such. This formal evaluation principle requires on its part a further material evaluation of the rights or interest to be comparatively considered. This evaluation again requires to adopt the law and its purport to the general attitude of a civilization and, finally, to the conception of law itself. Let us examine the conclusions to be drawn from this legal situation in our case:
Agreement and so-called likely agreement, just as well as a national emergency and a war emergency, constitute special legal justifications, the recognition of which allows us to dispense with a recourse to the general principle of evaluating conflicting rights and interests. The latter retains its subsidiary importance. Furthermore, those two special legal justifications refer in their purport to a fair and equitable way of thinking as well as to the proportional importance of various types of evils; thus they themselves include the conception of evaluating conflict ing rights and values.
For this reason, among others, the following must be explained in detail at this point:
a) A national emergency and a war emergency unmistakably were existing in 1942. Every day the life of thousands of wounded was endangered unless the threatening would infection could be checked by applying proper remedies and by eliminating inadequate remedies. The danger was "momentary". Immediate help had to be provided. The "public interest" demanded the experimental clarification of this question. The evidence has shown that the question could not be clarified by experiments on animals or by observing of incidental wounds.
b) But the last word on this question has not yet been said just by referring to the public interest. Opposed to the public interest are the individual interests. The saying "necessity knows no law" cannot claim unlimited validity. But just as little can the infringement on individual interests in order to save others, be outright considered as "contrary to good morals". The evidence has shown that the members of the resistance movement of Camp Ravensbrueck who were condemned to death could escape the imminent execution only if they submitted to the experiments which form the subject of this indictment. There is no need to examine now and here whether the experimental subjects did give their consent or whether they presumably would have consented, if, from their personal point of view and in the full knowledge of the situation, they could have made a decision within the meaning of an objective judicial opinion based on probability.
What really matters is the question of whether the defendant, upon a just and fair evaluation of the interests of the general public and the real interests of the experimental subjects could come to the conclusion that, all circumstances considered, the execution of the experiments was justifiable. This question doubtslessly can be answered in the affirmative. Quite apart from the interest of the state in the execution of the experiments, the participation in the experiments was in the real and well-considered interest of the experimental subjects themselves, since this participation offered the only possibility of saving their lives by way of an act of mercy.
(15) The Defendant's Erroneous Assumption of an Agreement by the Experimental Subjects.
The hearing of 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 in 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 complaint of any kind on the part of the experimental subjects were ever reported to him, - the defendant Fischer also was not in a position to make any personal observations along these lines, - we now must examine the question of the legal position of the defendant Gebhardt if he assumed erroneously 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 be found also in Art. 59 of the German Penal Code. But beyond that, this legal principle may be considered one of the principles which are generally valid and which are 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 proven and therefore does not provide the prerequisites for a legal excuse for objective reasons, - we still cannot assume an intentional on act on the part of the defendant Gebhardt if he acted under the "erroneous assumption of an agreement by the experimental subjects."
(16) The Erroneous Assumption of Likely Agreement.
The same applies if the defendant Gebhardt erroneously assumed a likely 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 e r r o n e o u s a s s u m p t i o n of such f a c t s, which, had they existed, would have induced the Tribunal to recognize the "likely consent." I am referring here to my argumentation for the legal excuse represented by the "likely consent," which I understand as "an objective judicial opinion 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 existance 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 also would be excluded according to the evidence - and even if he did so erroneously, the intent and thus the crime in this case also would be excluded according to the generally acknowledged principle.
(17) The Defendant's Erroneous Assumption of an Emergency (Putative Emergency), I already mentioned the circumstances which justify the assumption of a national emergency and a war emergency caused by the special conditions prevailing in 1942.
If these conditions were actually prevailing, the illegality of the act and not only the guilt of the perpetrator would be excluded, for reasons emmerated before. If the defendant had erroneously assumed circumstances which had they really existed would have justified a national emergency and a war emergency, then, according to general principles already mentioned, the intent of the defendant and thus his guilt would be eliminated also in this respect. The evidence especially the defendant's own statements on the witness stand, leave no doubt that when the experiments began in 1942, he had assumed the existence of such circumstances, which were indeed the starting point and motive for ordering and carrying out these experiments.
(18) Action by Order and in Special Military Position.
The defendant Gebhardt carried out the experiments for testing the efficiency of the sulfonamides by direct order of the head of the state and Supreme Commander of the Wehrmacht, Adolf Hitler, as transmitted to him by his military chief, Reichsfuehrer-SS Himmler. In this case Gebhardt did not act as a surgeon and chief physician of a large clinic, but as General Lieutenant and Consulting surgeon of the Waffen-SS. When carrying out this order, the fact had to be considered that Germany was in a state of war, which threatened and made problematic the foundations of the German nation.
When the legal consequences arising from the fact that the defendant Gebhardt acted upon military orders, are examined, the constitutional and political conditions prevailing in Germany in 1942 should not be left without consideration. I shall deal with all questions arising from these conditions when evaluating the evidence presented in the case of the defendant Fritz Fischer. To avoid repetitions I refer to those later arguments which are equally relevant to the case of the defendant Gebhardt. The relation of the defendant Gebhardt to the Reich Fuehrer SS, Himmler, and to the Commander-in-Chief of the Wehrmacht, Hitler, was in this respect similar to the relation which existed between the defendants Fischer and Gebhardt.
In both cases acting by order and in a specific military capacity represents a legal justification, or at least an extenuating fact.
DR. SEIDL: I now ask the Tribunal to take notes of Numbers 19 to 31. I shall not read them into the record, but I should like to 'point' our first in my closing brief and especially in the supplement in reply to the Prosecution. There are a number of statements which refer to what I have read and what I have allunded to. I shall now turn to the case of the defendant Herta Oberhauser.
THE PRESIDENT: Counsel, it approaches five 9'clock and you still have an hour an a half approximately remaining for your arguments.
