d. Evidence

_Testimony_ Page Extracts from the testimony of defendant Rose 77 Extracts from the testimony of prosecution witness Professor 80 Werner Leibbrand Extracts from the testimony of prosecution expert witness Dr. 82 Andrew C. Ivy

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[23]

_DIRECT EXAMINATION_

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DR. FRITZ: You heard the lecture which Dr. Ding gave on his experiments at the Third Conference of Consulting Physicians in the Section for Hygiene and Tropical Hygiene?

DEFENDANT ROSE: Yes. That was the time when I protested openly against this whole method.

Q. Well, what happened?

A. Dr. Ding gave his lecture in a camouflaged form as in his article for the Journal of Hygiene and Infectious Diseases. Therefore, the unsuspecting listener could not tell that it was about experiments on human beings.

When the discussion began, I commented on the results of these experiments. That part of my statement is contained in the record of the conference. It is Document Rose 38, which has already been submitted. (_Rose 38, Rose Ex. 10._) I do not intend to read these remarks, I simply want to point out that one can find there what I said about the technical aspect of the experiments and about the results.

Then I spoke of the ethical side of the whole thing and this part of my statement has been stricken from the record. I cannot, of course, reproduce today the exact wording but only the sense of what I said. I said more or less as follows: As important and as basic as the results may have been, they were nevertheless achieved at the cost of a number of human lives. We as hygienists should object against a life and death experiment being performed as the prerequisite for the introduction of a vaccine. So far, the customary procedure had been the testing with animal experiments and subsequent determination of tolerance by human beings and epidemiological exploitation. This procedure had proved its value. We had to stick to it and we couldn’t let other political and state authorities force us to conduct human experiments. I spoke much longer at the time. I spoke for at least ten minutes. Ding replied that he could pacify my conscience. The experimental subjects had been criminals condemned to death. My answer was: I knew that myself. I was not interested in the individuals concerned but in the principle of human experiments in testing vaccines. At this comment Professor Schreiber interrupted the discussion. He said he protested against my criticism and if we wanted to discuss basic ethical questions we could do that during the recess. He would have this part of the discussion stricken from the record and that was done. After the meeting various participants came to me and we discussed the whole matter. Some agreed with me; others were convinced that in such an important question human experiments were justified. Of course, those people who [_sic_] believed Ding’s assurance that the subjects were criminals condemned to death. I no longer remember the individual men with whom I talked during the recess and I don’t know who was in favor and who was against it. The only one I remember is Professor Mrugowsky because he spoke as an SS member and the experiments had been conducted by an SS doctor, and because I thought that Mrugowsky was Ding’s superior in every way. Of course, I remember that Mrugowsky of all people came and said that, in principle, he agreed with me, and that he had expressed similar misgivings to Grawitz and that Grawitz had rejected his misgivings. Then I also learned from Mrugowsky that Himmler was behind all these experiments.

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DR. FRITZ: Did you later discuss the matter of experiments on human beings before a large group of people?

DEFENDANT ROSE: Yes. That happened once again before a large number of people, but it was not about typhus experiments. It must have been about October 1944. The question at hand then was grippe. There was a meeting, a rather large meeting at which grippe vaccine was discussed. A number of people reported on the vaccines which they had developed in the laboratory. Among others, Professor Herzberg reported on a vaccine made from dead grippe virus, and Professor Haagen on a vaccine made from living avirulent grippe virus, which he had already tested on personnel at the Strasbourg clinic. Someone in the meeting, I don’t remember who, suggested that the Haagen tests had been insufficient, and that this vaccine should be tested on a larger number of persons. There was no mention of concentration camps then but of student companies. I had considerable misgivings about such experimental vaccination and expressed them. I said that I considered the experimental basis inadequate for these vaccines to be used on human beings. I was not convinced that the virus had been sufficiently attenuated. There was a danger that the vaccine would lead to infection, and one could not take that responsibility on one’s self. It was first of all intended to observe the effectiveness of the protection by determining whether people fell ill of grippe in natural ways after being vaccinated. Then someone else made the suggestion that this would take too long, and we did not know whether there would be an influenza epidemic during that time, and that therefore after the vaccines the subject should be infected with a virulent virus. Since I had already expressed objections to the vaccination, I opposed this proposal even more strongly, and the result of this discussion was that infections were not carried out, but it was decided to carry out the vaccination. Whether these vaccinations were carried out or not, I do not know. At any rate I read no order to the effect that anyone should perform the vaccinations nor did I ever read a report that the vaccinations were carried out. Only later on in imprisonment did I hear that similar experiments, such as were then discussed, and of which I disapproved, were carried out by the British Medical Service on German PW’s. Genzken probably participated personally in this, but I had heard about this before in the internment hospital Karlsruhe where there were people who had experienced these vaccinations.

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EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS PROFESSOR WERNER LEIBBRANDT[24]

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_CROSS-EXAMINATION_

DR. SERVATIUS: Witness, you stated that the performance of experiments on human beings, as is the subject of the indictment here, can be ascribed to biological thought. What do you mean by biological thought?

WITNESS LEIBBRANDT: By biological thought I mean the attitude of a physician who does not take the subject into consideration at all, but for whom the patient has become a mere object, so that the human relationship no longer exists, and a man becomes a mere object like a mail package.

Q. You spoke of thinking as a biologist. Do I understand that you see therein an action belonging to biological thought?

A. An exaggeration of the purely mechanical or biological point of view, because the physician is not merely a biologist, he is also a biologist. Primarily, however, a physician is a man who assists the human being and not a scientific judge of biological events.

Q. Could there not be other causes for the experiments, such as a collective state thinking?

A. Yes.

Q. Witness, you used the expression “demoniac order”. What do you mean by that?

A. By demoniac order I mean the following: If I define as a basis for medical activity merely the maintenance and safeguarding of the substance of the nation according to blood, the result is that everything which falls outside this pretense has to be cleared away. That is a mild expression of what actually happened, namely, extermination.

Q. Then your demoniac order only refers to the blood aspect. Could it not be applied to the purely state collective aspect as well?

A. Could you give an example so that I can understand it better?

Q. I mean that experiments were undertaken and that the voluntary act of the individual is replaced by the act of the state, namely, by the voluntary approval given by the state.

A. Between the collective idea and the state order on the one hand and the medical individual on the other, there stands something rather important—the human conscience.

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Q. Professor, if all these experiments were actually conducted, and also as you said this morning and as Moll’s book shows, Moll alone published approximately six hundred works about thousands of such experiments (on human beings), must one not say that wide circles of medical men judge the question of experiments on human beings under certain conditions differently from you—from an ethical point of view?

A. That I cannot say, because even Moll writes at the end of this work that it is part of a physician’s morals to restrain his urge for natural research in favor of the basic medical attitude as laid down in the oath of Hippocrates, namely, to cause no arbitrary harm to his patient.

Q. But in your opinion, Professor, how should a doctor work in the interest of suffering humanity in cases where, as you have just said, there is no possibility of experiments on animals?

A. The concept of humanity is a very dangerous concept. It is most dangerous of all for the physician. For the physician, the individual stands above all humanity and the individual unfortunately has sunk very low in these last few years.

Q. I believe that you have not quite answered my question. I asked: How do you think the doctor should solve certain questions even in the interest of the individual—questions which cannot be tested with animal experiments and test tubes, as is the case with malaria for instance. This is a problem which must be cleared up if he is to help his suffering patients.

A. That is naturally a very difficult question. But in the end the main thing will always be that a risk must have certain limits.

Q. Thank you. Now I come to another point. This morning, Professor, you expressed disapproval about a book which the defendant Mrugowsky wrote on medical ethics. May I ask, have you read this book?

A. Yes.

Q. Do you know Mrugowsky personally?

A. No.

Q. Then you do not know his ethical point of view?

A. I said that it was quite an ironical joke of world history for someone to quote the high medical ethics of Hufeland in the form of excerpts from his writings, as far as I remember, with a few connecting words and to combine these quotations in a modest little volume, while on the other hand we now know how it was entangled organizationally with the deeds under discussion here. I am only speaking about the entanglement and not about the objective guilt which has not yet been proved.

Q. And from where else do you infer Mrugowsky’s entanglement with the facts under discussion here, apart from the fact that he is one of the defendants indicted?

A. After all, he was the Chief of the SS Hygienic System, and the medical principles of an ethical nature personified by the SS have become clear to me during the last few years. There seems to me to be a large gap between these two things, between these deeds of SS medical ethics and the ethics of Hufeland. I might perhaps understand how a man like Mr. Haubhold could be enthusiastic about a one-sided interpretation of political medicine by Josef Peter Frank in the 18th century. But I cannot understand how the SS ethics can be connected up with the honest ethics of Christian Hufeland.

Q. Professor, you just told us you do not know Mrugowsky at all?

A. No.

Q. Then how can you express a judgment on his personal ethical attitude? You are merely judging from the fact that he belonged to the SS. Before you express such an opinion as you are doing, before you talk about a joke of world history, must you not first know the personal attitude of the person you are criticizing, and is it not quite possible that his personal attitude was such as is expressed in this book?

A. I don’t believe that one can hold a leading position in the SS and then talk about such personal ethics, unless, of course, in ethical questions one does what is called double bookkeeping.

Q. But you admit that all your criticism is pure assumption, in no way based on personal knowledge of the person criticized?

A. I do not know Mr. Mrugowsky.

Q. Thank you. I have no more questions.

EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS DR. ANDREW C. IVY[25]

_DIRECT EXAMINATION_

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MR. HARDY: Now, Professor Ivy, before adjournment you were beginning to discuss medical ethics in the United States.

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Do you have there also the principles and rules as set forth by the American Medical Association to be followed?

WITNESS DR. IVY: Yes.

Q. What was the basis on which the American Medical Association adopted those rules?

A. I submitted to them a report of certain experiments which had been performed on human subjects along with my conclusions as to what the principles of ethics should be for use of human beings as subjects in medical experiments. I asked the association to give me a statement regarding the principles of medical ethics and what the American Medical Association had to say regarding the use of human beings as subjects in medical experiments.

Q. Would you kindly pass up to me that ruling of the principles put out by the American Medical Association? This apparently isn’t what I am referring to, Doctor. Do you have a publication which is published by the American Medical Association entitled “Principles of Ethics Concerning Experimentation on Human Beings”?

A. Not with me here.

Q. Well now, you have, first of all, a basic requirement for experimentation on human beings, “(1) the voluntary consent of the individual upon whom the experiment is to be performed must be obtained.”

A. Yes.

Q. “(2) The danger of each experiment must be previously investigated by animal experimentation,” and “(3) the experiment must be performed under proper medical protection and management.”

Now, does that purport to be the principles upon which all physicians and scientists guide themselves before they resort to medical experimentation on human beings in the United States?

A. Yes. They represent the basic principles approved by the American Medical Association for the use of human beings as subjects in medical experiments.

JUDGE SEBRING: How do the principles which you have just enunciated comport with the principles of the medical profession over the civilized world generally?

A. They are identical, according to my information. It was with that idea in mind that I cited the principles which were mentioned in this circular letter from the Reich Minister of the Interior dated 28 February 1931 to indicate that the ethical principles for the use of human beings as subjects in medical experiments in Germany in 1931 were similar to those which I have enunciated and which have been approved by the House of Delegates of the American Medical Association.

MR. HARDY: Is it possible that in some field of scientific research investigation by animal experimentation would be inadequate?

A. Will you repeat that question? I did not get it.

Q. Is it possible in some fields of medical research that experimentation or investigation on animals would be inadequate?

A. Yes. The experiment on trench fever is a very good example.

Q. How would you investigate the danger of the experiment prior to resorting to the use of human beings?

A. The hazard would have to be determined by a careful study of the natural history of the disease.

Q. Does malaria also fall into that category?

A. We can use animals to some extent in malarial studies, canaries and ducks, for example, develop malaria; and in research designed to discover a better drug for the treatment of malaria we can use Avian Malaria as a sort of screen method to detect which compounds might be employed with some assurance and might be effective in human malaria. In that way we decrease the random and unnecessary experimentation on man.

Q. To your knowledge have any experiments been conducted in the United States wherein these requirements which you set forth were not met?

A. Not to my knowledge.

MR. HARDY: Your Honor, I have no further questions concerning medical ethics to put to Dr. Ivy; however, I do have one question concerning the high-altitude experiments which I wish to go back to at the conclusion of that complex, in high altitude, and I will have completed my direct examination.

PRESIDING JUDGE BEALS: The Tribunal has no questions of the witness. Do I understand that you have completed your examination of the witness?

MR. HARDY: No. I have not; I have a further question to put to him, but I was going to leave the case of medical ethics.

PRESIDING JUDGE BEALS: We have no questions on that subject; you may proceed.

MR. HARDY: Dr. Ivy, in medical science and research is the use of human subjects necessary?

WITNESS DR. IVY: Yes, in a number of instances.

Q. Is it frequently necessary and does it perform great good to humanity?

A. Yes. That is right.

Q. Do you have an opinion that the state, for instance, the United States of America, could assume the responsibility of a physician to his patient or experimental subject, or is that responsibility solely the moral responsibility of the physician or scientist?

A. I do not believe the state can assume the moral responsibility that a physician has for his patient or experimental subject.

DR. SEIDL: I object to this question in that it is a purely legal question which the Court has to answer.

DR. SAUTER (for the defendants Ruff and Romberg): If I am not mistaken, a document was read this morning which said that the state assumes the responsibility. I believe that I am not mistaken in this. I also want to point out something else, gentlemen, in order to supplement what Dr. Seidl just said.

The question asked here is always what the opinion of the medical profession in America is. For us in this trial, in the evaluation of German defendants, that is not decisive. In my opinion the decisive question is for example, in 1942, when the altitude experiments were undertaken at Dachau, what the attitude of the medical profession in Germany was. From my point of view as a defense counsel I do not object if the prosecution asks Professor Ivy what the attitude or opinion of the medical profession in Germany was in 1942. If he can answer that question, all right, let him answer it, but we are not interested in finding out what the ethical attitude of the medical profession in the United States was. In my opinion a German physician who in Germany performed experiments on Germans cannot be judged exclusively according to an American medical opinion, which moreover dates from the year 1945 and was coded in the years 1945 and 1946 for future use; it can also have no retroactive force.

PRESIDING JUDGE BEALS: The first objection imposed by Dr. Seidl might be pertinent if the question of legality was concerned, a legal responsibility, that would be a question for a court. The question of moral responsibility is a proper subject to inquire of the witness.

As to Dr. Sauter’s objection, the opinion of the witness as to medical sentiment in America may be received. The counsel’s objection goes to its weight rather than to admissibility. The witness could be asked if he is aware of the sentiment in America in 1942 and whether it is different from this of the present day or whether it does not differ. The witness may also be asked whether he is aware of the opinion as to medical ethics in other countries or throughout the civilized world. But the objections are both overruled.

MR. HARDY: It is your opinion, then, that the state cannot assume the moral responsibility of a physician to his patient or experimental subject?

WITNESS DR. IVY: That is my opinion.

Q. On what do you base your opinion? What is the reason for that opinion?

A. I base that opinion on the principles of ethics and morals contained in the oath of Hippocrates. I think it should be obvious that a state cannot follow a physician around in his daily administration to see that the moral responsibility inherent therein is properly carried out. This moral responsibility that controls or should control the conduct of a physician should be inculcated into the minds of physicians just as moral responsibility of other sorts, and those principles are clearly depicted or enunciated in the oath of Hippocrates with which every physician should be acquainted.

Q. Is the oath of Hippocrates the Golden Rule in the United States and to your knowledge throughout the world?

A. According to my knowledge it represents the Golden Rule of the medical profession. It states how one doctor would like to be treated by another doctor in case he were ill. And in that way how a doctor should treat his patient or experimental subjects. He should treat them as though he were serving as a subject.

Q. Several of the defendants have pointed out in this case that the oath of Hippocrates is obsolete today. Do you follow that opinion?

A. I do not. The moral imperative of the oath of Hippocrates I believe is necessary for the survival of the scientific and technical philosophy of medicine.

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2. GERMAN MEDICAL PROFESSION

a. Introduction

The position of the German medical profession under the Hitler regime was the subject of argument by both prosecution and defense. The prosecution discussed the matter in the early part of its opening statement (vol. I, p. 29 ff.). Selections from the argumentation of the defense on this point have been taken from the final plea for the defendant Blome and from the closing brief for the defendant Rostock. These appear on pages 86 to 90.

b. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT BLOME_[26]

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Furthermore, I have another matter at heart, especially in my capacity as defense counsel for this defendant: Blome was Deputy Reich Physicians’ Leader; he will, therefore, to a certain degree, easily be regarded as the representative of the German medical profession during the Hitler regime. Now, there is great danger that the entire German medical profession will be identified with its former leader, Dr. Conti, and with the crimes he was charged with during this trial; the German medical profession fears that those crimes which, _in fact_, were committed by _individual_ doctors, who may have been rightly charged, are to be taken as typical of the entire medical profession. Indeed, during the last months we could hear in the press and on the radio that the entire medical profession was here in the prisoners’ dock; unfortunately, by thus generalizing, the matter was presented as though the entire medical profession was corrupt and that the majority of German physicians had committed such crimes or at least approved them, as stated here in the indictment at the trial. This conception is wrong and unjust. The German medical profession numbered about 80,000 members and if we add the Wehrmacht physicians and the official physicians, one arrives at about 100,000 physicians. Now let us compare with this total number the small number of physicians and researchers here in the dock. There are altogether 20 men. Of what importance is such an insignificant number for the judging of the entire profession? If out of 5,000 German physicians one single person committed a crime, it is impossible to draw a conclusion from these few exceptions regarding the behavior and morals of the whole class. And even if we suppose that perhaps another few hundred physicians and researchers not here in the dock had taken part in the “experiments on human beings” and in the “euthanasia action”, the number of guilty persons in comparison with the total number of the entire profession is still too small to entitle one to consider the entire profession as criminal, and morally inferior because some individuals committed a wrong.

There is yet another point of view. It stands to reason that not all experiments on human beings can be excused and justified, not even during a time of total warfare and under a dictatorship, and no decent person would ever think of excusing the way and manner in which the Hitler State carried out the “Euthanasia Program.” However, it is an incontestable fact that large-scale experiments on human beings cannot altogether be avoided and are, in fact, carried out throughout the whole world, and that there are different viewpoints concerning the problem of euthanasia, even to a limited extent in the circles of conscientious physicians when this is carried out on a proper legal basis, and when, in addition, full precautions are taken to prevent abuses. It must not be overlooked that the deterioration of the medical profession claimed in connection with this trial is connected exclusively with the problem of experiments on human beings and with euthanasia, but that no accusations are made against the professional practice of the German physicians in any other respects; there are especially no accusations referring to the relationship between the sick patient and the physician whom he had chosen as a helper and confidant to restore his health. This confidence in the attending physician felt by the patient has remained completely untouched by this trial.

We Germans have our own opinion about our physicians, we know their conscientiousness and willingness to render help; especially during the war we have been able to observe and appreciate their readiness to sacrifice themselves; we know that the good qualities that made the German physicians and researchers a model in former decades were not lost during Hitler’s time, and it would be a pity if the abuses, which have been revealed and proved by this trial, should serve to undermine the confidence of the German people in their physicians and expose them to the contempt of all civilized nations.

Individual researchers, who out of ambition or a passion for research did not value a human being’s life more than that of a rabbit, should not be considered representative of the German physicians’ profession, nor should those physicians of the concentration camps, who for lack of a conscience or for some other wicked reason gave fatal injections to prisoners or tortured them to death, be regarded as representative of the German medical profession. No. Representative of a model German physician during Hitler’s time, too, is the non-political, practicing physician, who, even if he did perhaps formally belong to the Party, strongly opposed from the bottom of his heart all kinds of violence and intolerance, who is closely bound to his nation and its needs, the practicing physician who cared for his patients in the most devoted manner day after day and night after night during the time of total war and fearful bombardments, which is especially hard for a physician; or who as military physician served at the front far from home, from his practice, from his family, fairly sharing all the hardships, dangers, and privations with his soldiers. And the surgeon who, as director of his clinic, operated and cured and helped from morning till night wherever he could help without having time to breathe, let alone to take part in political activity, he also is representative of the model German physician during Hitler’s time too.

I do not know what verdict you will arrive at respecting one or the other of these defendants; but, as defense counsel of the former Deputy Reich Physicians’ Leader, I beg you to make it clear by your verdict that in judging the defendant, if you must condemn him, you do not condemn and defame the entire German medical profession, but that the abuses which were committed were individual acts such as, perhaps, happened in all professions during Hitler’s time without necessitating a condemnation of the entire profession. These were individual acts arising perhaps partly from personal criminal tendencies of individual fanatics, partly from being connected with the excesses of a total war in a dictatorship of unscrupulous violence.

If beside the 23 defendants there is a 24th sitting in the dock, invisible to our eye, he is not of the German medical profession but the SS spirit of Himmler and of a dozen other murderers of millions of people. This spirit might have led a fanatic to forget his professional ethics and to commit crimes. But the entire medical profession remained sound and conscious of its duty.

May your verdict not completely rob the German people of their confidence in their physicians but restore it to them, and I have no doubt that after the present crisis has been overcome and in more normal circumstances, the German medical profession will prove to its people that as a body it never forgot nor will ever forget the professional ethical commandments of the Hippocratic oath.

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_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT ROSTOCK_

_Introduction_

Mr. President, your Honors:

The great English historian and sociologist, Thomas Carlyle, once said, “Your life, and were you the humblest of human beings, is not a wild dream but a lofty fact.” I do not want to speak to you in this courtroom without first recalling this saying and thereby seeing before my eyes the picture of the great number of our fellow human beings whose lives have really become a wild dream. The fact on which this trial is based, that defenseless human beings were used by doctors of my country for experiments and in part died after suffering tortures, cannot be denied. I, myself, would doubt the clarity of my judgment as a German jurist if I did not realize that general human rights, such as the fundamental standards anchored in all civilized nations, have been violated thereby. Medical science should bring help and healing to suffering humanity. I am proud to state that it was German doctors who, in the last century, saved millions of human beings from the most serious and fatal diseases by their research. Let me remind you only of names such as Robert Koch, Emil von Behring, Paul Ehrlich, Theodor Billroth, and August Bier, or medicines such as Germanin, atabrine, Salvarsan, diphtheria serum, tetanus serum, and many others. If it were possible to achieve such decisive results in any other way, this would only confirm the actual truth, that no one, no matter how highly placed and no matter how important his aims, has the right to lower other human beings to the level of guinea pigs by force. How could a man venture to dispose in that way of the life and health of his fellow men, be they ever so humble? It seems to me that this involves a fundamental contradiction to the duty of the doctor, a violation of the dignity of the individual, and a presumption which cannot remain without horrible results. There may be doubtful cases, there may be borderline cases, but the solution of these questions can be based on only one principle, which is that all creatures in human form have an equal right to life and health. Humanity would be in a sad state if again and again there were not volunteers from the ranks of physicians and laymen who made themselves available for experiments, conscious of their contribution toward saving and healing other human beings. But how can a man dare simply to designate others to suffer and die, when they, too, like to live and be free from want and fear, just like he himself? * * *

3. MEDICAL EXPERIMENTS IN OTHER COUNTRIES

a. Introduction

The practice of medical experimentation upon human beings in other countries was brought out by the defense in an effort to show that the medical experimentation in which these defendants engaged was not criminal. Extracts from the argumentation of the defense have been selected from the closing briefs for the defendants Karl Brandt and Ruff. These appear below on pages 90 to 93. From the evidence on this question, the following appear below on pages 95 to 121: Selections from defense documents, followed by extracts from the cross-examination of one of the prosecution’s expert witnesses Dr. Andrew C. Ivy and an extract from the cross-examination of the defendant Rose.

b. Selections from the Argumentation of the Defense

_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT KARL BRANDT_

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Reference has furthermore been made to the _extraordinarily large number of persons_ available _for experiments_. With regard to the experiments made and on the basis of the evidence of this trial, experiments on a large scale have been made only in rare cases, and these may be compared in size with experiments on a large scale outside of Germany, as they were made even in peacetime; reference is made once more to the malaria experiment. (_Karl Brandt 1, Karl Brandt Ex. 1._)

If one considers the _number of persons sentenced to death_ who were subjected to experiments, the number is comparable to those eleven condemned persons for the poison experiment in Manila. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)

One should compare, among others, the plague experiments by Strong in 1912 on 900 convicts, including an experiment on 42 persons some of whom were persons sentenced to death, and the typhus experiments by Hamdi on 153 persons. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)

If the number of condemned persons used for experiments in these proceedings appears high, it should be taken into consideration that the number of persons sentenced to death under the laws of war is also unusually high. For the protection of the country, criminal laws are, during wartime, applied more rigorously in all countries in order to guarantee safety at home during the absence of the male population at the front. The number of ordinary criminals who have been punished on account of acts committed by taking advantage of war conditions, and especially of the blackout, is already unusually high; it is, therefore, not even necessary to include herein the persons sentenced for political crimes.

In this connection the viewpoint of the _English scholar Mellenby_ of the London School of Hygiene and Tropical Medicine deserves special consideration. (_Becker-Freyseng 60, Becker-Freyseng Ex. 58._) In the well-known medical journal “The Lancet” of 1 December 1946, this doctor quotes particularly the _political conditions_ in Germany as decisive and as an excuse for the accused persons. One may not, therefore, subsequently refer to the general conditions in Germany during the war years in order to judge the _acts committed during this time_ more severely.

The number of human guinea pigs used in the experiments alleged by the prosecution is about 2,000. The number of human guinea pigs known to the defense from published data amounts to more than 11,000 persons. If among those, minor experiments are also to be found, it may be supposed that the experiments published contain only the material fit to be known to the public. Publications show the results but not the sacrifices and undesirable incidents. That which the defense can present is not the result of an exhausting criminal investigation.

Looking at only these experiments which were considered fit for publication, one cannot possibly come to the conclusion that they were made only with volunteers. I refer in this connection to the compilation of experiments in Document Karl Brandt 117, Karl Brandt Exhibit 103, namely 32 experiments on at least 1,580 persons: they are experiments on persons sentenced to death, prisoners and soldiers, women and girls; the experiments are often carried out in such a way that it cannot be presumed the subjects volunteered.

Voluntary service of the human guinea pigs has not been claimed either; only in two cases has it specifically been pointed out. The volunteers in one of these experiments were medical students. Outstanding in this document are 13 experiments with at least 223 children. One cannot assume that the parents had given their consent. In this connection reference is made to Document Karl Brandt 93, Karl Brandt Exhibit 29, regarding the experiments of Professor McCance.

_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT RUFF_

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Experiments which time and again have been described in international literature without meeting any opposition do not constitute a crime from the medical point of view. For nowhere did a plaintiff arise from the side of the responsible professional organization, or from that of the administration of justice, to denounce as criminal the experiments described in literature. On the contrary, the authors of those reports on their human experiments gained general recognition and fame; they were awarded the highest honors; they gained historical importance. And in spite of all this, are they supposed to have been criminals? No! In view of the complete lack of _written_ legal norms, the physician, who generally knows only little about the law, has to rely on and refer to the admissibility of what is generally recognized to be admissible all over the world.

The defense is convinced that the Tribunal, when deciding this problem without prejudice, will first study the many experiments performed all over the world on healthy and sick persons, on prisoners and free people, on criminals and on the poor, even on children and mentally ill persons, in order to see how the medical profession in its international totality answers the question of the admissibility of human experiments, not only in theory but also in practice.

It is psychologically understandable that German research workers today will, if possible, have nothing to do with human experiments and will try to avoid them, or would like to describe them as inadmissible even if before 1933 they were perhaps of the opposite opinion. However, experiments performed in 1905-1912 by a highly respected American in Asia for the fight against the plague, which made him famous all over the world, cannot and ought not to be labelled as criminal because a Blome is supposed to have performed the same experiments during the Hitler period (which, in fact, however, were not performed at all); and experiments for which, before 1933, a foreign research worker, the Englishman Ross, was awarded the Nobel prize for his malaria experiments, do not deserve to be condemned only because a German physician performed similar experiments during the Hitler regime. One should not say that experiments, where different diseases or different drugs from those referred to in this trial were dealt with, have no connection with the charges of this indictment because of this difference and that, therefore, they are of no importance as evidence. In the foreground there stands the basic question as to the conditions under which such experiments are permissible; whether they refer to plague or typhus, to tuberculosis or jaundice, is a secondary question which concerns the medical expert more than the jurist.

Decisive for this trial is the question whether the conditions under which experiments were performed by the defendants were those internationally recognized as for the experiments which were performed by foreign research workers with the approval of all civilized humanity.

If one wants to arrive at a just and satisfactory decision, one must disregard the fact that here German research workers are accused. On the contrary, one has to strive toward obtaining an international basis to represent the present international opinion on human experiments, one which for decades, if not for centuries, will form the criterion for the permissibility of human experiments. We, as jurists, can only render a service to the development of medical science and therewith to humanity if we endeavor to establish an incontrovertibly clear view of today’s international opinion on human experiments, whether these experiments were performed by Germans or by foreigners.