c. Selections from the Argumentation of the Defense
_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT KARL BRANDT_
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_Voluntary Participation_
Experiments on persons who offer themselves voluntarily have always been considered admissible. In literary works care is always taken _to note this voluntariness_; where it is not mentioned, one may conclude that it was nonexistent.
The interest taken in the voluntariness of the person experimented upon has various reasons.
First of all the compulsory experiment—in contrast to the voluntary experiment—means an additional, very heavy mental strain, for the experimenter since the health and life of a human being may be at stake and the future existence of the person experimented upon may be imperiled.
But the experimenter has not only a purely human interest in having the person to be experimented upon offer himself with a certain voluntariness; in many cases he must absolutely depend on the _cooperation of the person experimented on_; he needs truthful information about observations made during the experiment, which cannot otherwise be carried out properly. Compare for instance the high-altitude and sea-water experiments.
Finally there may exist the wish to be protected against _claims for damages_ and to prevent the _uncovering_ of legal provisions, as well as to guard against the possible _political odium_ that might result from having given orders for a forced experiment.
However, one look at the literature shows that the notion of _voluntariness_ is _strongly suspect_, and every critical reader will in most cases associate himself with such suspicions.
The subjection to an experiment which is dangerous or even only painful or temporarily onerous must be based on a special motive.
_Ethical reasons_ alone can give rise to voluntariness strictly speaking only in the case of the researcher himself, that is in self-experiments, and in the case of persons who for ethical reasons consciously wish to support by their cooperation the aims of the researcher.
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However, if a declaration of voluntariness is made for reasons of _inexperience_, _thoughtlessness_, or _distress_, then it is unethical. Into this category fall cases where persons are induced to undergo experiments through promise of money or other advantages, while they do not foresee the meaning of the experiments. These are the weak, who, unprotected, are made to serve the interests of humanity. Compare with this the case of the use of immigrants for experiments. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._) The _category_ here of particular interest is that of _prisoners_ who offer themselves voluntarily.
First of all, one cannot assume that the _ethical level in a penitentiary_ is so high above that of free men that here a great number of prisoners would offer themselves for participation in an experiment voluntarily only for purely ethical reasons. On the contrary, one can say that _all prisoners_ are living under a certain _compulsion_. They expect from their participation in the experiment an improvement of their position or fear a worsening in case of refusal. Even though the regulations about the treatment of prisoners may be fixed, in practice there remains in this particular world a very wide scope for the punishment of prisoners with measures which, as experience shows, may hit the prisoner much more severely and more grievously than the sentence of the judge itself.
If the motive of the prisoner for his “voluntary offer” is merely a general _and vague hope_, in any direction, then there is no genuine declaration of voluntariness, but the consent is merely the off-shoot of his condition of constraint.
Two things have to be considered with regard to the prisoner’s declaration of voluntary consent; the _risk_ which he undergoes and the _advantage_ that is offered him. One can only give one’s consent to something of which one knows the full _meaning_ and _importance_. The prisoner must therefore have been fully informed of the possible consequences. Here only lies the real problem of “voluntariness.” It is not enough that the person to be experimented upon knows that, for instance, a malaria experiment is to be made; he must also know just how the particular person is to be used. The first easy series of experiments cannot be compared with the daring final experiments. Who is going to offer himself for the ultimate experiment necessary if the other persons to be experimented on get off more lightly? What was the nature of the consent?
Professor Ivy as expert witness has said nothing about this problem.
As a matter of fact a person to be experimented on can hardly estimate the risk, and the recruiting officer will not be inclined to give a frightful description of what may happen. Professor Ivy, who has recruited volunteers himself, does not consider experiments to be an evil. If you add that the “volunteer prisoner” has to forego all claims in case of injury to his health, then the consent of the prisoner cannot be considered as valid.
On the other hand the prisoner must know the advantage promised him as his _compensation_ must be in suitable relation to the severity of the experiment and the reward must be assured to the prisoner. If the advantage is strikingly disproportionate to the risk and given as an act of grace without claim after the conclusion of the experiment, then there is no voluntary experiment; it remains a forced experiment.
Only if both basic conditions are fully met will it be possible for the prisoner to make a free decision. He may then allow his possible death to be included in the bargain in order to gain the chance of shortening the time of his imprisonment by years.
Such a case is depicted in the well known pellagra experiments, where with the collaboration of attorneys as defense counsellors, the conditions were agreed upon by the prison administration. (_Karl Brandt 47, Karl Brandt Ex. 54_; _Becker-Freyseng 60a, Becker-Freyseng Ex. 59_.)
This is the _classical case of a voluntary experiment in prison_. It will not always be possible or necessary to fix the advantage in the same manner; the official promise of the prison institute may be sufficient to exclude an arbitrary denial of the promise. Examples for that are the leprosy experiments on a person condemned to death, and the continuous experiments in the penitentiary Bilibid. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)
These experiments must, be considered admissible as _experiments where a chance is given_.
The examples from medical literature, however, show that these general conditions for voluntariness were not always fulfilled. So we refer only to the experiments in the penitentiary San Quentin with streptococci on 25 convicts in 1946. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)
Accordingly, even experiments carried out on persons without their consent must be considered admissible.
_Involuntariness_
There are some examples of experiments carried out abroad which were carried out as _compulsory experiments_ on prisoners _without_ their _consent_. As an example may be mentioned the poisoning experiment carried out in _Manila_ on 11 prisoners sentenced to death. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._) The persons subjected to experiments were executed immediately after as part of the experiment. The _malaria experiment_ carried out on 800 prisoners has to be mentioned too. According to an explicit statement in the press, no advantages were granted them in return. (_Karl Brandt 1, Karl Brandt Ex. 1._)
The method described by the witness Ivy was introduced later on as a practice of the administration.
It is evident that in these cases no declarations of voluntariness could have been made because no criminal who is sentenced to death will make himself available first for experiments _where he has no chance_, unless there is some hope of a favor shown to him. But in the case of poisoning experiments there was _no question of commutation of the sentence_ because the purpose of the experiment was the study of the effect of poison on corpses. Thus, execution was included as part of the experiment.
Concerning the malaria experiments the press notice explicitly said that _no privileges of any kind_ were granted, thereby referring to the task of the prisoners, as “social parasites”, to help fight the mosquitoes as equal social parasites.
One must conclude that compulsory experiments are admissible, but one _cannot_ draw the conclusion that the state is authorized to use the prisoners at random for any experiment whatever by way of punishment.
_The gravity of the experiment_ must stand in a _certain proportion_ to the gravity of the crime. The expiation must be such as can be expected. This very idea of the reasonableness of the demand is expressed in the malaria experiment mentioned where reference is made to the socially negative attitude of the persons subjected to experiments, thus applying the idea of _expiation_.
The same fundamental idea might have led to the resolution to use conscientious objectors for the experiments. It seems that here _expiation_ has been demanded from the same point of view of a _socially inimical attitude_. It does not seem unfair if a _conscientious objector_, as a deserter, is subjected to experiments if he adopts this attitude only in wartime and if this attitude helps him to escape behind prison walls, thus withdrawing from dangers which the soldier at the front has to bear for the sake of the community. For the soldier, this danger may consist in a dangerous epidemic disease, to which he is exposed in wartime especially.
The idea of compulsory experiments in the sense of an experiment of expiation has been proposed as an _expiation measure_ with regard _to prisoners of war and political prisoners_ and has not been objected to even by the public. So the less ethically orientated opinion of the day frequently expresses the view that experiments on criminals should be carried out for the purpose of expiation.
Even in the press these opinions have their representatives. So among others a reference appeared in the London paper “The People” of 3 March 1946 (_Karl Brandt 114_[163]) There the following is said: “People believe that all these men (the defendants at the International Military Tribunal) will die. It is the opinion of many that they ought to have died months ago and ought to have been shot three days after arrest by court-martial sentence. Others are of the opinion that they should _expiate their crimes_ by being subjected to cancer, leprosy, and tuberculosis experiments.”
It is significant in this excerpt that it is a well-known English author, Llewellyn who passes it on, and he does not adopt a disapproving attitude to it.
Accordingly, it can be ascertained that such experiments of expiation on _political opponents, prisoners of war, and civilians_ can be looked upon as _reasonable_ and admissible, if these persons, as convicted _criminals_, are subject to _punishment_ and if the law relating to the serving of sentences permits experiments of that kind.
The _Geneva Convention_ in Article 46 provides for a restriction only insofar as no punishments may be inflicted on prisoners of war apart from those that are admissible for members of the army of one’s own country; the same must be applied to civilians.
In comparison with this, no restrictions exist with regard to the execution of punishment in cases of _criminal_ offenses. Therefore the penal execution law, admissible in each state, can be applied.
If therefore compulsory experiments for expiation can be carried out on an American citizen, they could be applied in the same way to a German prisoner of war, assuming that the latter has been sentenced under penal law. In accordance with this, the same must be admissible in the execution of German penal law if the _foreign prisoner_ has been legally sentenced to punishment.
The foreign criminal is not in a better position than the subject of one’s own country.
The compulsory experiment must have its limits.
Here one must distinguish between responsibility for the _arrangement of the experiment_ and for its _conduct_. In both cases the physician can have a share in it. The _decision for the conduct_ of experiments on human beings can come from two sides, different in character. The demand can result from urgency in the interests of the community and can be vindicated by _the state_. During the war, experiments can be demanded by the _armed forces_ in case of epidemics to be expected, such as malaria, typhus, and the like.
On the other hand the suggestion can come from the _research side_ itself, which perceives a possibility of combating an evident state of distress, through the progress of medical science, and also demands experiments for the sake of the community.
The decision concerning the necessity for such experiments is a _decision of usefulness taken by the state_, consequently a _political_ decision, signifying a balancing of expenditure and of success to be expected or hoped for.
There are different kinds of questions which have to be decided; first of all there are economic questions to be solved by the competent authorities; i. e., financial questions, supply of specialists, laboratories and so on.
Responsible for it are offices with means and possibilities available, which can dispose of them according to their own judgment. These offices are divided further according to their special interest in individual special spheres, such as air navigation, _Wehrmacht_, and the like.
_No decisions_ can be made by an authority _without any means at its disposal_; this is valid for instance for the office “Science and Research” of the defendant Karl Brandt, which fulfilled only a recording and coordinating function within certain medical spheres. Evidently the activity of the _Reich Research Council_ was chiefly that of an organ of control and had to eliminate superfluous research during the war by refusal of subsidies in order to help the small number of specialists and material by allotment of priority ratings and financial means. This was the task of the Reich Research Council and in the medical sphere this part of its general regulating activity was very small.
These offices had _no power of decision as to whether experiments on human beings_ could be made or not, and they could not have it. The office which regulated the _infliction of punishment_ and disposed of human beings subjected to experiments was the only office to take decisions. This corresponds to what is known about the conduct of experiments on human beings abroad, where the decision was also taken by administrative offices.
The _authority for the infliction of punishments_, as the authoritative office of the state, makes its _independent_ decision while _politically balancing_ the _necessity_ for arranging experiments in the interests of the community against what can be expected of the condemned. Applied to German conditions during the war it means the following:
If the condemned are under the control of the authorities of justice competent for the execution of sentences, the responsibility rests upon the _Reich Minister of Justice_; if the execution of sentences is carried out by the _Reich Leader SS and the Chief of Police_ in the concentration camps, the latter has to be responsible for it.
In this situation _the responsibility of a physician_ can be of value for a decision only so far as he gives a false _expert opinion_ about the prospects of the experiment.
The government has to make the final decision about the admissibility of experiments on human beings; the government only has to decide whether experiments on human beings are necessary in order to combat dangers and injury to health, as it is responsible for everything pertaining to health. In connection with this compare the regulation of the French Government in 1858 for the purpose of clearing up the question concerning the treatment of secondary syphilis and the experiments made on human beings. (_Karl Brandt 48, Karl Brandt Ex. 55._)
In war time, the decision is also conditioned by considerations concerning _the preservation of the state_, which are _dependent on war conditions_. Epidemic diseases can have a decisive influence on the result of the war and might in the end be of a greater importance than battles, as for instance the plague during the siege of Athens, or typhus during the advance of Napoleon into Russia. Biological warfare is the result and was prepared intensively by the enemies of Germany, as the foreign press openly informed us.
In the same way as the state demands the _death_ of its best men as soldiers, it is entitled to order the death of the condemned in its _battle_ against epidemics and diseases. _No antique sacrifices to gods and demons_ are demanded any longer, only a _well considered expiation_ as a help for the community and indeed exclusively in its interest.
The actual _responsibility_ of the physician lies in the _conduct of the experiment itself_. The experiment has to be conducted by the physician, but the _political responsibility for it rests upon_ the state, while the physician is responsible for its conduct.
If the physician considers that an experiment is not feasible it can become a _crime_ and the physician has to refuse to carry it out.
In carrying out the experiment every attention must be paid to all _regulations_ of medical practice concerning _medical research_ at the time.
All possible preliminary _experiments conducted on models_ have to be made before experiments on human beings are started. That means that preliminary experiments in laboratories, experiments on animals and so on, have to be conducted. In case of need even experiments carried out on the researcher’s own person belong to the preliminary experiments.
Generally, responsibility for the _extent of the experiments_ rests upon the physician. In the arrangement of the experiments the number of the persons selected for experiments must be as great as necessary in the interests of the result of the experiment, but in the interests of the persons selected for the experiment the number must be as small as possible.
The conduct of the _experiment_ must be _correct_ and _excesses_ which could increase its danger _have to be avoided_.
Finally, the _experiment must be stopped_ by the physician if it is evident that the expected result is attained or most probably will not be attained.
The _assignment of persons_ needed for an experiment in the course of infliction of punishment can take place only at the instigation of the executory office in whose custody the prisoner is held.
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It has been pointed out that many persons used for experiments were _foreigners_, and that this fact should have prevented experiments on them. In this connection the following reference is made:
It is a fact that strong resistance movements in the West, and especially in the East, waged a total partisan war against the German troops and caused bloody sacrifices. International law does not object to capital punishment for participants in illegal combat and illicit sudden attacks against members of the occupation army. If, therefore, instead of the permissible execution of capital punishment, mitigation through an attempt at expiation occurs, special consideration should be given to this fact.
The reproach that no experiments should have been made on _political prisoners_ contradicts the fact that the political opponent, in all countries and at all times, has in most cases been punished more severely than the criminal, namely on the basis of criminal law governing treason, espionage, and contravention of war measures, i. e., political orders. Reference is hereby made to the fact that every occupation army threatens capital punishment for many, otherwise insignificant, offenses.
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_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT RUFF_[164]
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_Prisoners as voluntary experimented subjects_
The question has repeatedly come up in this trial whether or not the experimental subjects in the Dachau high-altitude experiments by Ruff-Romberg were volunteers, although the people were in _detention_, that is to say, indisputably under duress.
The expert Professor Dr. Leibbrandt has held to his one-sided opinion in this respect too, and has advocated the theory that prisoners can never be regarded as volunteers. This opinion is doubtlessly false; in other times, the expert perhaps would not have supported it. For the administration of justice in other cases also accepts legally binding statements of prisoners, and does not think of declaring them legally ineffective, only for the reason that the prisoner in consequence of his imprisonment finds himself in an embarrassing situation, and therefore not completely master of his own free will.
One surely is not mistaken in supposing that none of the defendants, even if he has ever such great experience as a medical man, at that time thought without exception of all the possibilities which we have to consider now, when for many months we have had to search for the legal basis of the whole problem of human experiments, and have had to think of all eventualities. According to his sentiment, at that time each physician and research man said to himself: If the experimental subject agrees to the experiment, everything is all right. For this always appeared to the physicians to be the highest principle: An experiment is legal if the experimental subject agrees to it, provided that the physician observes the necessary care when performing the experiment. As proved here by this trial, there exists in no country a written law regulating the legal conditions of experiments on humans. On the other side, however, the human experiment is such a far-reaching and often such an indispensable matter that one might speak of an unwritten law, which generally and tacitly is accepted and acknowledged by the whole world. Counsel for some of the defendants have demonstrated to the Tribunal in their document books the opinion of the whole world on this unwritten law, in the most varying degrees, from the absolutely harmless to the absolutely deadly experiment, and has certainly thereby compiled valuable material which is suitable for forming the basis of a codification of this unwritten medical law and to show safe future roads for the development of justice in this sphere. Lacking a written law, the physician and research man even today can only recognize the conventional legal concept as a rule for his conduct as expressed in international medical literature.
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When reading this international literature, however, there cannot be any doubt that the volunteering of the experimental subjects warrants in every case the legality of human experiments, and that, therefore, the more sentimental attitude of our research workers was right when, because of their knowledge of international literature, they made the question of the legality of human experiments depend in the first place on the voluntariness of the experimental subjects.
As far as one can see, international medical literature up to date nowhere represents the opinion that the consent of a prisoner is ineffective because, by reason of his imprisonment, he had no free will. On the contrary, in many cases it has taken an important step forward, and had frequently, without meeting any opposition, reported on experiments performed on prisoners whose consent was not regarded as essential. Many experiments, some of which were reported on here in Court, and some of which are described in the documents submitted by the defense, demonstrate clearly that obviously the opinion prevails everywhere that in the case of prisoners, in particular those who have been sentenced to death, the consent of the prisoner to the experiment can be replaced by the permission of the authorities, even in the case of experiments which were very dangerous and where fatalities occurred in more or less large numbers. The published reports also talk about the number of deaths in the experiments described, some slightly camouflaged but to a large extent openly, without the research worker or the reader realizing that murderous actions were being reported, because otherwise the reaction would have been a completely different one.
The question becomes particularly acute if these experiments were carried out in a totalitarian state or during a total war. It is not the point in this connection whether a dictatorial regime is desirable or should be rejected, nor whether a war as such appears to be criminal (for example because it will be judged as an aggressive war later on); the attitude that, under such exceptional conditions as exist in a dictatorship or total war, even life-endangering experiments on human beings may perhaps be more justified than under normal conditions is obviously based on the thought that the state governed by dictatorship can and will ask for greater sacrifices, from criminals too, especially during total war.
As a matter of fact the following thought appears to have occurred to many a defendant during this trial: During a total war the state asks everybody to be ready at any time to serve at the front, and during the aerial war every woman and every child at home is exposed daily and every hour to mortal danger; many a citizen would therefore think it unsatisfactory if a criminal, who is burdened with heavy guilt or may even have committed a crime punishable with death, remains free from all danger, in other words is in a better position than the upright citizen.
It appears now that many an experimental subject who was used at that time for experiments was of the same opinion, because the witness Karl Wolff stated on oath that the prisoners to whom he spoke in Dachau said, that “they would contribute voluntarily to Germany’s war effort and show a sign of their actual good will.” (_Ruff 21, Ruff Ex. 20._) The same ideas were also stated by various defendants during their interrogation.
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