_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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