EXTRACTS FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[156]

_EXAMINATION_

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JUDGE SEBRING: * * * Witness, for the sake of clarification, let us

assume that it would have been highly important to the Wehrmacht to

ascertain, as a matter of fact, how long a human being could withstand

exposure to cold before succumbing to the effects of it. Do you

understand that? Let’s assume secondly that human subjects were selected

for such freezing experiments without their consent. Let’s assume

thirdly that such involuntary human subjects were subjected to the

experiments and died as a direct or indirect result thereof. Now, would

you be good enough to inform the Tribunal what your view of such an

experiment is—either from the legal or from the ethical point of view?

DEFENDANT KARL BRANDT: I must repeat once more, in order to make sure

that I understood you correctly. When assigning the experiment the

following things are assumed: highest military necessity, involuntary

nature of the experiment, and the danger of the experiment with eventual

fatality. In this case I am of the opinion that, when considering the

circumstances of the situation of the war, this state institution which

has laid down the importance in the interest of the state at the same

time takes the responsibility away from the physician if such an

experiment ends fatally and such a responsibility has to be taken by the

state.

Q. Now, does it take away that responsibility from the physician, in

your view, or does it share that responsibility jointly with the

physician, in your view?

A. In my view, this responsibility is taken away from the physician

because, from that moment on, the physician is merely an instrument

maybe in the same sense as in the case of an officer who receives an

order at the front and leads a group of three or four soldiers into a

position where they are certain to meet death. That position, if I apply

it to German conditions during the war, is in principle the same. I

don’t believe that the physician as such, from his ethical and moral

feelings, would carry out such an experiment without this assurance of

the authoritarian state which gives him a formal and legal assurance on

one side and, on the other side, gives him the order for the execution.

Naturally, in this case, it is a theoretical question since I cannot

survey the position in the case of the freezing experiment. I don’t know

how this assurance was given and how the order was given. Basically, I

want to differentiate between the order for an experiment which arises

from medical needs as such and where, under the circumstances, the state

only has a secondary interest on the basis of medical initiatives, and I

would differentiate between the reverse state of affairs where the state

uses medical activities.

Q. The Tribunal has one further question of interest.

In your view, would an order which authorized or directed a subordinate

medical officer or subordinate medical group to carry on a certain

medical experiment—let us assume for the moment this freezing

experiment—we have then a general order, let us assume, directing a

certain institute to carry on freezing experiments without delineating

or specifying in detail the exact course of those experiments. Would you

conceive that such an order would authorize the medical officer to whom

the order was addressed to select subjects involuntarily and subject

them to experiments, the execution of which that officer absolutely knew

or should have known would likely result in death to the subject?

A. May I have your last sentence repeated, please? This question is

extremely difficult to answer. The order given in such a case has to be

taken into consideration. May I, perhaps, answer with an example of such

an order. If Himmler gives an order to a Dr. “X” and tells him to carry

out a certain experiment, then it is possible that Dr. “X” did not wish

to comply with this order. In such a case, however, Dr. “X” will not

have overlooked the importance of the experiment itself, the same way as

the lieutenant who received a certain military order—and we are here

concerned with a military order—does not overlook that he would have to

hold out with a group of eight men at a bridgehead and that this would

end in his death. In spite of that, this officer with his eight men to

whom he passed this order on would meet their death at that position. So

this physician “X” who received this order from Himmler would under the

circumstances have to carry out an experiment without being able to

judge the validity of the reasons which prompted a central agency.

If a physician had not carried out that experiment, he would have got

into a position where he would be called to account if he had not

carried out that experiment. In this case, and there we have to consider

the authoritarian nature of our state, the personal feeling and the

feeling of a special professional, ethical obligation has to subordinate

itself to the totalitarian nature of the war.

I must say once more, these are theoretical assumptions which I am

expressing here. At the same time I could express how difficult such

decisions are if I refer to an example which recently was quoted here,

and I mean the eight hundred inmates in a prison in America who were

infected with malaria. I don’t want to refer to this example in order to

justify the experiments which are under indictment here, but I want to

express that the question of the importance of an experiment is, and

remains, basically of decisive importance. Even there a certain number

of fatalities had to be expected from the start when infecting eight

hundred people with malaria.

The voluntary attitude which an inmate adopts and with which an inmate

makes himself available is a relatively voluntary agreement. I don’t

think it would be the same if one were to receive a voluntary agreement

from people who are present here. One has to consider the nature of the

voluntary agreement. In my opinion, this round figure of eight hundred

speaks against the voluntary agreement of all. I would assume that if it

was seven hundred and thirty-five or seven hundred and forty, it would

be different, but the round figure of eight hundred seems to indicate

that there was a certain order for the experiment before the beginning

of the experiment, and these experiments, too, were directed from the

point of view of a superior state interest, and this superior state

interest, at the same time, takes over the responsibility for the result

of the experiment with reference to the experimental subject. For

responsibility in a medical sense cannot be assumed at all since even a

negative series of experiments speaks against the urgency and necessity

of these experiments; and particularly when answering the question about

voluntary or involuntary, dangerous or nondangerous natures, it is very

difficult and almost impossible to say basically with reference to

experiments that experiments on human beings, taking all these things

into consideration, are a crime or are not a crime. The question can

only be judged when over and above the expected result experiments are

still continued. If a result has been established and further

experiments on human beings are then carried out, they are not

important, and the experiment which is not important is only a

dilettante experiment. In that case I would from the start assume the

word “criminal,” but when dealing with important experiments, it is

necessary to take into consideration all the circumstances which played

a part at that time; that is to say, the important experiments, from the

moment a result is achieved, become unimportant. From that moment on, in

my opinion, the experiment is criminal. Therefore, that when speaking

about human experiments at all, one must put the results at the disposal

of the state—not only to one state but internationally—so that

experiments which are carried out in Russia and which had shown results

would not be continued in other countries.

With reference to freezing experiments, I can only say that in a certain

form, without saying “criminal” or “not criminal,” they showed their

value. The indication for that is that the results in the American Air

Force were considered as something extraordinary and helped the American

Air Force to gain years, and I think that these experiments would also

be of use in mines, where a number of fatalities occur because of

freezing. If you consider the freezing experiments in that light, the

victims in effect are tragic and are to be regretted, but with reference

to subsequent periods these victims are a real sacrifice, for hundreds,

or maybe thousands of people might save or prolong their lives because

of it.

* * * * *

Q. Dr. Brandt, is it not true that in any military organization, even

one of an authoritarian state, there comes a point beyond which the

officer receiving an order subjects himself to individual

responsibility, at least in the eyes of civilized society, for carrying

out any military orders, particularly if the order is unlawful or

transcends the limit of extreme military necessity?

A. There was a general law stating that an officer does not have to

carry out an order which he realizes is a crime, but the question with

reference to these various experiments is whether the man concerned can

realize that what he is doing is a crime. If he can realize it, then, in

my opinion, he cannot comply with the order.

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Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume I · 第 481 / 486 题