c. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT GEBHARDT_[21]

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_The Principles of Medical Ethics and the Applicable Law_

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

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

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

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

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

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_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT BEIGLBOECK_[22]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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