1947-07-15, #3: Doctors' Trial (late afternoon)

Dr. Seidl, counsel for defendants Karl Gebhardt, Herta Oberheuser, and Fritz Fischer, presents the first half of his joint closing argument

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 Oberheuser, 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, Oberheuser, 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 Wehrmacht 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.

(5) 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 undoubtedly 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 climate 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 not 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 [Privy Councilor] 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 as 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 military-medical 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 Ravensbruck. 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 referring 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 three sub-groups of thirteen 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, streptococci, 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, Oberheuser, 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 chronological order, which makes the whole matter the more doubtful as it was proved through the taking of evidence that in the Ravensbruck 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 sulfonamide 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 Oberheuser 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 Ravensbruck 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-Soviet 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.

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 practically 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 Ravensbruck 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 Commander-in-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 so called 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 theaters 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, through the dangerousness of the wound infection and the threat to the survival of the wounded and the combative force of the troops 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 [General] 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 International law recognizes also a special war emergency. 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 "military necessity of war" (war-raison) which by itself never justifies the violation of the laws of warfare. Emergency and necessity of war however, are different 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 sulfonamide 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 "de bellatio" 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 International emergency 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 German 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 principle 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 conflicting 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 Ravensbruck 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 doubtlessly 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 Ravensbruck 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 Ravensbruck 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 erroneous assumption of such facts, 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 existence of such circumstances which seems certain according to the evidence — and even if he did so erroneously, the intent and thus the crime in this case 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 enumerated 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 alluded to. I shall now turn to the case of the defendant Herta Oberheuser.

THE PRESIDENT: Counsel, it approaches five o'clock and you still have an hour an a half approximately remaining for your arguments.

The Tribunal will now be in recess until 9:30 o'clock tomorrow morning.

THE MARSHALL: The Tribunal will be in recess until 9:30 o'clock tomorrow morning.

(A recess was taken until 0930 Hours, 16 July 1947)