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

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

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.

c. Evidence

Defense Documents
Doc. No.Def. Ex. No.Description of DocumentPage
Karl Brandt 1Karl Brandt Ex. 1Extract from “Life”[95]
Magazine concerning malaria experiments on convicts in U. S. penitentiaries.
Becker-FreysengBecker-FreysengStatement of Professor[95]
60Ex. 58Dr. Hans Luxenburger and Dr. Hans Halbach concerning the report on experiments on human beings in world literature (Becker-Freyseng 60a, Becker-Freyseng Ex. 59).
Becker-FreysengBecker-FreysengExtracts from report on[96]
60aEx. 59experiments on human beings in world literature; excerpts from various newspapers and medical weeklies.
Karl Brandt 117Karl BrandtExcerpts from the[103]
Ex. 103dissertation “Infection Experiments on Human Beings” by Alfred Heilbrunn of the Hygiene Institute of the Wuerzburg University, 1937, concerning experiments on human beings in other countries.
Testimony
Extracts from the testimony of prosecution expert witness Dr. Andrew C. Ivy.[110]
Extract from the testimony of defendant Rose[118]

PARTIAL TRANSLATION OF DOCUMENT KARL BRANDT 1

KARL BRANDT DEFENSE EXHIBIT 1

EXTRACT FROM “LIFE” MAGAZINE CONCERNING MALARIA EXPERIMENTS ON CONVICTS IN UNITED STATES PENITENTIARIES

Extract from “Life”, Vol. 18, Nr. 23 of June 4, 1945

Prison Malaria

Convicts expose themselves to disease so doctors can study it.

In three United States penitentiaries men who have been imprisoned as enemies of society are now helping science fight another enemy of society. At the United States Penitentiary in Atlanta, the Illinois State Penitentiary, and New Jersey State Reformatory some 800 convicts volunteered to be infected with malaria so medical men can study the disease. The experimenters, who are directed by the Office of Scientific Research and Development, have found prison life ideal for controlled laboratory work with humans. Their subjects all eat the same food, sleep the same hours, and are never far away. The prisoners are not pardoned or paroled for submitting to infection.

Prison malaria experiments underline the fact that malaria is still a very serious medical problem. In the United States there are 1,000,000 cases a year. The existing drugs (mainly quinine and atabrine) control malaria but cannot keep it from recurring long after the original infection. The goal of malaria research is to find a new drug which will cure the disease permanently.

PARTIAL TRANSLATION OF DOCUMENT BECKER-FREYSENG 60

BECKER-FREYSENG DEFENSE EXHIBIT 58

STATEMENT OF PROFESSOR DR. HANS LUXENBURGER AND DR. HANS HALBACH CONCERNING THE REPORT ON EXPERIMENTS ON HUMAN BEINGS IN WORLD LITERATURE (SEE ALSO BECKER-FREYSENG 60a, BECKER-FREYSENG EX. 59)

Experiments on Human Beings as Viewed in World Literature

I, Professor Dr. med. Hans Luxenburger, specialist in nervous diseases, resident at 35, Liebigstrasse, Munich, and I, Dr. ing. and Dr. med. Erich Hans Halbach, physician, of Prien-Chiemsee, have first been advised that we shall render ourselves liable to punishment if we give a false affidavit. We declare under oath that we have ascertained the correctness of the enclosed excerpts of scientific works and books, that is to say, with respect to the excerpts bearing the following numbers: 1, 5, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 46, 47, 48, 54 * * * by comparison with the original; with respect to the numbers 2, 3, 4, 6, 7, 9, 19, 41, 43, 45, 49, 50, 51, 52, 53 by certified photostatic copies, copies, translations or excerpts submitted to us by attorney at law Dr. Edmund Tipp.

We made the report “Experiments on Human Beings as Viewed in World Literature” to the best of our knowledge for presentation as evidence before the American Military Tribunal I in the Palace of Justice, Nuernberg, Germany.

Munich, 14 April 1947

[Signed]Prof. Dr. Hans Luxenburger
Dr. Hans Halbach

PARTIAL TRANSLATION OF DOCUMENT BECKER-FREYSENG 60a

BECKER-FREYSENG DEFENSE EXHIBIT 59

EXTRACTS FROM REPORT ON EXPERIMENTS ON HUMAN BEINGS IN WORLD LITERATURE; EXCERPTS FROM VARIOUS NEWSPAPERS AND MEDICAL WEEKLIES

Excerpt from the Certified Translation
Author: Ladell, W.S.S. (Med. Research Committee).
Title: Effects after Taking Small Quantities of Sea-Water. An experimental study. (From the research staff, National Hospital, Queen Square).
Quotation: The Lancet No. 6267 (October 1943) page 441.
Purpose: Contribution to the physiology of persons who received the same food and drinking water as shipwrecked persons in lifeboats. Studies regarding the effect of the drinking of sea water on the chloride balance, urea excretion, urine amount, and loss of body weight of shipwrecked persons.
Procedure:
1. Three experimental persons, after one day without water, drank 240 cc. fresh water and 180 cc. sodium chloride 3.5 percent solution daily for 4½ days.
2. Ten experimental persons, after one day without water, drank 540 cc. fresh water and 180 cc. sea water daily for 5 days; the following 4 days, 5 of these experimental persons drank 60 cc. fresh water daily, the following 4 days the other 5 experimental persons drank 60 cc. fresh water and 180 cc. sea water daily.
3. Eleven experimental persons, after one day without water, drank 540 cc. fresh water daily for 5 days; 6 of these experimental persons received 60 cc. water and 180 cc. sea water daily for the following 4 days.
4. Two experimental persons, after one day without water, drank 370 cc. fresh water each for 2 days, for the following 3 days daily 240 cc. fresh water each, plus 400 cc. sea water, the next 36 hours only 600 cc. sea water.
All experimental persons moreover took only sea-rescue emergency rations in limited quantities, with 1 gr. sodium chloride at the most.
Experimental persons: 17 experimental persons from a naval hospital submitted “voluntarily to the severe experimental conditions”, without physical injury.
Excerpt from Certified Report 19
Author: Cameron and Karunaratne.
Quotation: Journal of Pathology and Bacteriology 42, 13 (1936).
Purpose: Studies of the poisonous effect of carbontetrachloride on human beings (report).
Experiment: Carbontetrachloride is administered to healthy criminals before their execution. The effect of the poison on the liver is determined by way of an autopsy. (Therapeutical normal doses 3.0 cc.: maximum dose 5.0 cc.)
2 test persons receive twice 6 cc. (Nichols and Hampton)
3 test persons receive twice 4 cc. (Docherty and Nichols)
2 test persons receive twice 5 cc.* (Docherty and Burgess)
1 test person receive twice 5 and 3 cc.* (Docherty and Burgess)
3 test persons receive twice 10 cc. (Leach, Haughwout and Ash)
* with subsequent laxative.
Result: In some cases changes in the liver, in others none.
Test persons: 11 criminals sentenced to death.
Excerpt from Original 20
Author: Lt. Col. Kendall, A.E., Lt. Col. Dickinson, S.P., Lt. Col. Forrester, J.S.
Title: The Treatment of Bacillary Dysentery in Chinese Soldiers with Sulfaguanidine and Sulfadiazine.
Quotation: American Journal of Medical Science 211,103 (January, 1946).
Purpose: Page 103: “The opportunity to make controlled observations of the efficacy of sulfaguanidine and sulfadiazine in the treatment of acute bacillary dysentery has recently presented itself to us. In an Army general hospital in northeastern India caring for Chinese and American troops, we have observed many hundreds of cases within the past year. It early became apparent that we were dealing with a relatively benign form of the disease with a uniformly favorable outcome. Under these circumstances, it seemed both justifiable and important to utilize the opportunity to determine to what extent sulfonamide therapy shortened the course of the disease or otherwise favorably influenced its course.”
Experiment: “The present communication describes the results of such an investigation, carried out in the 7-month period from June through December 1943, in which the results of treatment were compared in 334 Chinese patients with bacillary dysentery, one-third received sulfaguanidine and one-third, sulfadiazine.”
Results: Page 109: “Neither drug shortened the course of the disease, ameliorated the symptoms, nor altered the eventual outcome.”
Test persons: 334 Chinese soldiers patients.
Excerpt from the Original Report No. 23
Author: See below.
Title: Trench Fever Report of Commission Medical Research Committee, American Red Cross, University Press 1918. Trench Fever, Bruce, Final Report of the War Trench Fever Investigation Committee, Journal of Hygiene 1921, page 258.
Quotation: Reference in Kolle-Kraus-Uhlenhut, Manual of Pathogenic Micro-organisms. VIII/1, 1302, (1930).
Purpose: “The American Commission (President: Strong, Members: Swift, Ople, McNeal, Beetjew, Pappenheimer, Peacoc, Rapport) interpreted its task in a preponderantly practical way, trying to clarify the methods of transmission and to safeguard the troops from infection. The English Commission (President: Bruce. Members: Harvey, Bacot, Byam, Trench, Arkwright, Fletcher, Hird, Plimmer) set itself the task of investigating the disease completely and thoroughly, particularly also the causative agent.”
Experiment: “The experiments of the English-American Commissions, those of transmitting Quintana with the entire blood were largely positive, and the intravenous injection showed better results than the intramuscular and particularly the subcutaneous.
“Experiments for the transmission of lice were carried out by the English and American Commissions on the two bases: The bite of lice and the rubbing in of infected lice secretion.”
The first announcement of the American Commission on successful transmission of lice came on 14 February 1918; the first successful experiment on the transmission of lice of the English Commission on 9 March.
Transmission Experiments:
with Plasmapositive in 7 cases
with Serumnegative
with red blood corpusclespositive 3 times in 4 experiments
with blood from skin which has been scratchednegative
Infection:
with secretion of licepositive
with sputum and salivapositive once in 4 experiments
with urine of patients rubbed into the skinpositive 5 times in 8 experiments
through the conjunctivapositive
through the urethranot successful
through the mouthnot successful
through food and drinknot successful
Experimental persons: Approximately at least 100
Result: Clarification of the etiology and the methods of transmission.
Excerpts from the Original Report No. 25
Author: Hamdi.
Title: Results of Immunization Tests against Typhus.
Quotation: Journal for Hygiene 1916, 82. Quoted in Kolle-Kraus-Uhlenhut, Manual of Pathogenic Micro-organisms VIII/2, 1204 (1930).
Purpose: See title.
Experiment: “By means of virulent blood of patients, Hamdi was in a position to check on a large number of persons who had been treated before partly with the blood of patients (80), partly with the blood of reconvalescents (54), partly with a mixture of both blood types (19) * * *. Upon the infection with the blood of patients, none of the thrice protectively vaccinated persons became ill, two out of seven persons who had been protectively vaccinated only twice became ill.”
Experimental persons: “In the first place, these experiments concerned persons who had been sentenced to death for crimes,”
“* * * large number * * *.”
Result: Effectiveness of protective vaccination was proved.
Excerpt from Original Report No. 26
Author: Doerr, R.
Title: Pappataci Fever and Dengue.
Quotation: Kolle-Kraus-Uhlenhut, Manual of Pathogenic Micro-organisms VIII/1, 501 et seq. (1930).
Purpose: Research in Etiology and Transmission of Pappataci Fever.
Experiment: II. Pappataci Fever. Page 508: “The organism circulates in the blood of the patients during the first 24 hours after the beginning of the fever. Its presence is betrayed only from the pathogenicity (infectivity) of the blood for healthy and receptive (not immune) human beings. If such an individual were to be injected with the blood of a subcutaneously feverish person he would fall ill * * * of a fever attack typical in every respect. This experiment was at first successfully performed by Doerr (1908), later by Doerr and Russ in the Hercegovina, by Birt in Malta, by Tedeschi and Napolitani in Italy, by Lepine (Three Days Fever in Syria, Bull. Soc. path. exot. 20, 251, 1927) in Syria. The experiment was repeated by Kligler and Ashner in Palestine and furnished positive results in about 35 single experiments. In this connection it must be considered that, almost without exception, the inoculated persons lived in areas free from epidemics and phlebotomus so that an accidental natural infection was out of the question from the beginning.”
Page 513: “But Whittingham and Rook brought infected phlebotomus from Malta to England. They succeeded in breeding imagines from the eggs of flies laid in England and infecting human beings by the bites of these flies, that is producing fever attacks. In this way, the question of where the virus of the Pappataci fever remains over the winter would apparently be answered.”
Experimental persons: About 35.
Result: Determination and confirmation of the etiology and the method of transmission.
Report After the Original No. 33
Author: Goldberger, Joseph (USA Public Health Service 1914).
Quoted from: Bernhard Jaffe, Scientists in America, Overseas Edition Incorporated, New York 1944, page 401 et seq.
Purpose: Proof that pellagra is a deficiency disease.
Experiment: One-sided deficiency diet (restricted in quality) which caused 7 severe cases of pellagra.
Experimental persons: 12 voluntary prisoners of the Rankin-Prison-Farm to whom their freedom was promised after survival of the experiment, with the agreement of the governor of the state. All survived and were set free.
Excerpt from Original 44
Author: Fraenkel, E.
Title: Report on Infectious Colpitis Epidemica Observed in Children.
Quoted from: Arch. Path. Anath. a. Physiol. (Virchow) 99, 251 (1885).
Purpose: Page 263: Confirmation of the suspicion of an “infection of the conjunctiva caused by vaginal secretion.” Animal tests showed negative results.
Experiment: Page 263: “By chance I had the possibility to inoculate the vaginal secretion (of sick women) into the conjunctiva of 3 children patients who were in the final stage of the disease (two were suffering from atrophia infantum, the third from cheesy pneumonia) * * *.”
Page 264: “The two pus-producing patients had suffered for several weeks from their colpitis.”
Result: 2 children died—1½ and 2 days after the inoculation without showing any reactions. The third child contracted conjunctivitis, which healed after treatment, and died on the 10th day.
Experimental subjects: 3 moribund children.
Excerpt from Original 48
Author: Current Comment. Summary of a study taken from Epidemiology Unit No. 50.
Title: Cholera Studies in Calcutta.
Quotation: Journal of the American Medical Association 130, 790 (1946).
Aim: Page 790: “* * * control experiment on the treatment of cholera * * *.”
Experiment: Page 790: “* * * in a highly endemic or epidemic area of India, patients were taken in rotation as they were admitted to the hospital and assigned to the following group according to the treatment given:
A, sulfaguanidine;
B, control;
C, sulfadiacine;
D, penicillin; and
E, sulfadiacine and penicillin combined.
All patients received supportive treatment in the form of i.v. hypertonic and isotonic solution of sodium chloride and oral stimulants as indicated of offset dehydration, emaciation, and circulatory failure.”
Result: Page 791:
1. Patient treated with plasma in addition to chemo-therapy: death rate: zero.
2. Patients receiving chemo-therapy alone: death rate 1.1 percent.
3. Control group consisting of all patients who had not received treatment or who had insufficient treatment or only supportive treatment: death rate 38.3 percent.
“The dramatic effect of plasma is still more evident if the shock or collapse cases are segregated and tabulated. There were, in all, 78 severely ill patients in that group. The results in the group showed a mortality rate of 95.8 percent for the control group, 15.8 percent for the chemo-therapy, and no mortality in the group treated with plasma plus chemo-therapy.”
Experimental subjects:
No numbers given, presumably several hundred, nonvoluntary as clinical serial tests.

PARTIAL TRANSLATION OF DOCUMENT KARL BRANDT 117

KARL BRANDT DEFENSE EXHIBIT 103

EXCERPTS FROM THE DISSERTATION “INFECTION EXPERIMENTS ON HUMAN BEINGS” BY ALFRED HEILBRUNN OF THE HYGIENE INSTITUTE OF THE WUERZBURG UNIVERSITY, 1937, CONCERNING EXPERIMENTS ON HUMAN BEINGS IN OTHER COUNTRIES

Excerpt from “Infection Experiment on Human Beings”

Inaugural Dissertation for the Attainment of the Degree of a Doctor of Medicine at the Friedrich-Wilhelm University of Berlin;

submitted by: Alfred Heilbrunn,

Hofgeismar (Hesse Nassau) 1937

From the Hygiene Institute of Wuerzburg University. (Dean: Professor M. Knorr)

Printed by: F. W. Gadow and Son, Hildburghausen.

(The pamphlet is in the library of the Erlangen University.)

MALARIA

Infection experiments with malaria take up much space in literature. The desire to acquire an exact knowledge of this disease, so important to various countries, makes this fact appear quite understandable. Therefore, numerous experiments on human beings were carried out even before the discovery of the plasmodium malariae and without knowledge of the transmission by anopheles. In the following enumeration, these experiments will be quoted chronologically, thus giving a picture of how the knowledge of the etiology, the infectiousness and the transmission of malaria, was discovered through infection experiments on human beings.

1. (LV 7) * * * SALISBURY (quoted from Mannaberg: Malaria Diseases, Vienna 1899. Nothnagel, Special Pathology and Therapy II 2.) * * * Experiment: * * * Two * * * men * * * after 12 and 14 days, fell ill with typical tertiana. The same experiment in a second case again turned out a positive result.

2. (LV 8) * * * DOCHMANN (Dochmann: The Doctrine of febris intermittens. St. Petersburg Medical Journal. No. 20, quoted from Virchow-Hirsch 1880) * * *. His experiments * * *. 1st experiment: He inoculated * * * a healthy 30-year-old man subcutaneously with * * * feverish chills.

2d experiment: * * * Inoculation of three men * * *

1st man: * * * fever

2d man: Only passing indisposition.

3d man: Stayed completely well.

3d experiment: Inoculation of a woman * * *

* * * shivering fits, fever, * * *

3. (LV 9) * * * GERHARD (Gerhard: quoted from Olpp: Famous Tropical Physicians Publ. Quello, Tuebingen) * * * transmitted * * * malaria from a sick person to a healthy one through subcutaneous blood injections.

4. (LV 10) * * * MARCHIAFAVA and CELLI (Marchiafava and Celli: New Research on Malaria Infection, Progress of Medicine, 1885, 787, 795) * * * Five experiments were carried out on patients suffering from nervous disorders.

1. Experiment: Experimental subject a 17-year-old man with myelitis transversa * * *

* * * progress of fever

* * * spasm * * *

* * * swelling of the spleen * * *

An examination of the blood gave an excellent confirmation of the malaria nature of the fever attacks * * *

2. Experiment: Experimental subject a 68-year-old man with hemichorea.

Characteristic attack of malaria, * * * moderate spleen tumor.

3. Experiment: Experimental subject a 32-year-old man with multiple sclerosis.

* * * characteristic attacks, spleen tumor.

4. Experiment: Experimental subject a 47-year-old man with multiple sclerosis.

No pathological manifestations in the blood picture.

5. Experiment: Experimental subject a 23-year-old man with poliomyelit. ant.

* * * fever * * *

These experiments showed that—

(1) in the blood of malaria patients, corpuscles were often found in the interior of the red blood corpuscles in amoeboic movement and susceptible to coloring with aniline.

(2) the disease is transmissible, and that the same amoeboic formations were found in the blood of the experimental subjects as in the blood of the donors. The scientists carried on the work on the basis of these results and came to the conclusion that these amoeboic corpuscles were the morbific agents of malaria. In order to be quite sure they made another inoculation experiment.

Experimental subject was a 43-year-old man with paralysis agitans.

* * * continual subnormal temperature accompanied by bad general condition . . .

* * * plasmodia moving in the blood * * *

5. (LV 11) The experiments of MARCHIAFAVA and CELLI are confirmed by a whole series of other Italian authors. I found the experiments in the book of MANNABERG (page 7) in the form of tables and reproduce them here in the same way. (vide pages 10-13) * * *

(LV 12) CELLI (Celli: quoted from Mannaberg (7)) had several persons in the Roman hospital S. Spirito drink water from the Pontinc Marshes and from the marshes near Rome and found that these persons did not contract malaria.

(LV. 13) BRANCALEONE (Brancaleone: quoted from Mannaberg (7)) repeated the same experiment in Sicily with the same negative result.

(LV. 14) ZERI (Zeri: quoted from Mannaberg (7)) had 9 persons, for a period of 5-20 days, drink 1.5 litres of water each (in toto 10-60 l.) from a malaria district; he let 16 persons inhale the same water when sprayed. He administered it to 5 persons per rectum: none of the experimental persons got malaria. Also SALOMONE MARIO (LV. 15: Mario quoted from Mannaberg (7)) registered the same negative result.

No results were found in support of the water theory. It only remained to examine whether mosquitoes transmitted malaria through their sting.

6. (LV. 18) * * * BASTIANIELI (vide Mannaberg (7)) * * * To imitate the sting of the mosquito he did nothing but insert the point of the Pravaz syringe, moistened with malaria blood, under the skin. That sufficed in some cases to produce a severe case of malaria.

7. (LV. 20) * * * 1895 ROSS (Ross, page 9) let 4 mosquitoes of the species anopheles suck themselves full on the Indian Abdul Radir who had numerous crescent-shaped formations in his blood, and on 25 May he let the twenty-year-old Lutschmann, who was stated never to have been sick before, be stung by them. On 5 June the latter contracted fever which lasted for 3 days.

8. (LV. 23) In 1917 WAGNER-JAUREGG (Wagner-Jauregg: Psych. neurol. weekly 1918) introduced artificial malaria infection to cure progressive paralysis. Following this, now experiments were initiated.

9. (LV. 25) F. MUEHLENS and W. KIRSCHBAUM (Muehlens and Kirschbaum: Further Parasitological Observations on Artificial Malaria Infection of Paralytics. Archives for Ship and Tropical Hygiene 1924, Vol. 28, No. 4, page 131) in 1924 report on artificial malaria infection for the treatment of paralysis.

DIPHTHERIA

Despite the Behring therapeutic serum and the protective vaccine developed by Behring, the field of diphtheria immunity has always interested various research experts. Their efforts were all directed toward developing safe, active immunity.

48. (LV. 137) As early as 1902 DZIERGOWSKY (Dziergowsky, quoted from Seeligmann and Happe: The Position of the Active Protective Vaccine against Diphtheria. Result of Hygiene 11, 1930) reported on several experiments to protect human beings against diphtheria by a number of subcutaneous injections with a gradually increasing dose of Diphtheria-Toxin.

49. (LV. 138) BLUMENAU (Blumenau, page 137) worked on this principle in 1909. He soaked cotton wads in undiluted toxin and placed them alternately in the right and then in the left nostril of children from 3-12 years of age. He attained an antitoxin titer increase of up to 10 A.E. per ccm. of serum.

50. (LV. 139) BANDI and GAGNONI worked with killed bacteria (Bandi and Gagnoni, page 137). They injected measles convalescents with a 4-day-old crush of diphtheria bacilli cultures on agar which had been killed at 55° Centigrade * * *.

51. (LV. 141) BOEHME and RIEBOLD (Boehme and Riebold, One Way of Active Immunization against Diphtheria, Munich Medical Weekly 1924, 232) were the first to use living diphtheria bacilli for vaccination of human beings. After extensive experiments on guinea pigs, they proceeded to experiment on human beings. They used a diphtheria lymph, which they named Diphcutan, a mixture of living, highly toxic diphtheria bacilli cultures in NaC1. Sixty-two persons were vaccinated with this lymph with 10-20 scratches each on the upper arm. Those vaccinated were—

22children from 1½-5 years of age,
11children from 6-10 years of age,
17children from 10-15 years of age,
2youths from 15-20 years of age, and
9adults from 20-50 years of age.

52. (LV. 142) EBERHARD (Eberhard, Contributions toward active Immunization against Diphtheria. Hygiene Journal 105, page 614) tested 4 different vaccines produced by the Marburger Behringwerke for their suitability for immunization of humans and for use in public vaccination stations.

53. (LV. 143) BAYER used the lymph suggested by BOEHME and RIEBOLD (Bayer, On active Immunization against Diphtheria. Yearbook of Infant Therapeutics 1925, 273) and vaccinated 87 children with it * * *.

54. (LV. 144) MUELLER and MEYER (Mueller and Meyer, Diagnosis and Immunization of children threatened with Diphtheria. Journal of Infant Therapeutics 39, 405, 1925). They also checked the experiments by BOEHME and RIEBOLD with the same methods, vaccinated 53 children who had shown a positive reaction to the SCHICK test.

TYPHUS

55. (LV. 149) REITANO (Reitano, quoted from Rontal, Journal of Bacteriology 1933 III, page 112) vaccinated human beings with virus contained in dog ticks and produced typhus.

56. (LV. 150) One immunization experiment dating from the World War cost the lives of 50 Turkish soldiers. In the year 1915 immunization experiments against typhus were to be carried out in the hospitals of the 3d Turkish Army with inactivated blood from a diseased person. The doctor concerned took the blood from typhus convalescents and injected it, as HAMDI (Hamdi, On the Results of Immunization Experiments against Typhus-Exanthem. Hygiene Journal, 1916, 235) reports without having inactivated it, into 120 soldiers. Each received 5 ccm. subcutaneously. One soldier died after 14 days, others contracted typhus which, however, progressed in a satisfactory manner. After this the doctor vaccinated another 310 soldiers in the same way. Of these, 174 became ill and 49 died. On the average the incubation period was 12 days.

PLAGUE

62. (LV. 165) * * * BULARD (A. F. Bulard, De Moru, The Oriental Plague, Paris 1839) * * *

Experiments continued to be carried out on condemned persons. On 17 August at 8 o’clock in the morning, 18-year-old Ibrahim Hassan, who had been condemned to death, was dressed in the shirt, underwear, and jacket of a person seriously ill with the plague. Immediately after this he was placed in the bed of one of the patients which was still warm from the patient’s fever. Until 21 August there was no sign that even the slightest infection had taken place. No symptoms of the disease had developed. On the evening of the same day, however, he complained of a slight headache, loss of energy started, the blood circulation accelerated * * *

A Plague Bubo developed in the left groin * * * 25 August: Further vomiting of dark green matter. The tongue is dry and has a slightly brackish appearance. The pulse is light and quick. Respiration is jerky, the features are distorted. In the night death occurs.

On 7 August at 8 o’clock in the evening, Mohammed Ben Ali who has been condemned to death was dressed in the shirt, underwear, and jacket of a person seriously ill with the plague. Immediately thereafter he was placed in the patient’s bed. Until the 22d no symptoms of disease. On the morning of the 23d severe outbreak of the disease. Tottering gait, then walking impossible. Extreme loss of energy, appearance of being seriously ill * * *

On 18 August we inoculated a person condemned to death with blood through 4 vaccinational cuts in the fold of the right arm. This blood was taken from a head vein of a plague patient who had been ill for 2 days * * *

On 22 and 30 August a second person, condemned to death, with a plethoric constitution and of strong build was inoculated with blood. The first time in a fold of the left arm and in the right groin area, the second time in the opposite positions. On the area of the vaccination only the natural reddening and infections caused by the vaccination instrument appeared, nothing else.

“A third person condemned to death was inoculated with the fluid taken from a Plague Bubo in the groin and in the shoulder. This same person had dressed in the clothes of a plague patient 20 days previously and had contracted the plague with all its severe symptoms. The skin and tissue of this experimental subject remained refractory towards any absorption of the poison. Even when the inoculation with blood was repeated 8 days later, no disease resulted.”

SMALLPOX

In 1791, the teacher Plett of Holstein successfully vaccinated three of his landlord’s children in Starkendorf near Kiel. Later on when an epidemic occurred they did not contract the disease, while their brothers and sisters which had not been vaccinated fell sick.

81. (LV. 220) JENNER started from these premises. (Jenner, quoted from Paschen, K.Kr.U., Manual on pathological micro-organisms, T. VIII, 1, P821). In his first test, he inoculated with variola 16 persons who had suffered from cowpox previously. They did not fall sick.

In 1796, a milkmaid who suffered from a finger injury contracted an infection when milking a cow sick with cowpox. She developed a case of cowpox. With the contents of one pustule, Jenner vaccinated a boy. The boy developed typical vaccine pustules at the vaccination area of his arm. Two weeks later, Jenner carefully inoculated the boy on both arms with new pustule matter. No sickness ensued, and a second inoculation also was negative. Thus, clear proof was furnished that cowpox transmitted to human beings possessed the same protective value as that produced in animals.

However, another epidemic was necessary before Jenner’s success was recognized. In this instance he inoculated 6 children directly from the cow. They developed a slight infection, and a subsequent inoculation failed.

The success of Jenner’s experimental infections on human beings have resulted in a blessing for all mankind inasmuch as his fundamental experiments on human beings have caused the extermination of variola in all countries that have compulsory vaccination.

EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT
WITNESS DR. ANDREW C. IVY[[27]]

CROSS-EXAMINATION

Dr. Sauter: Witness, you are an expert in the field of aviation medicine?

Witness Dr. Ivy: Yes.

Q. May I ask you what fields within aviation medicine you have worked on specifically, because my clients, who are recognized specialists in this field, attach importance to ascertaining precisely what fields you have worked in particularly?

A. I have worked particularly in the field of decompression or pressure drop sickness, and I have also worked in the field of anoxia or exposure to altitude repeatedly at a level of 18,000 feet to ascertain if that has any effect in the causation of pilots’ fatigue.

Q. At what time did you specifically concern yourself with the fields you have just named? Was that before the Second World War, during the Second World War, or was it earlier than that?

A. My interest in these fields of aviation medicine, including free fall which I did not mention, started in 1939.

Q. Regarding your specific work in this field, Witness, you have also issued publications. I believe you spoke of two publications. Did I understand you correctly, or were there more?

A. There were two in the field of decompression sickness. There was one publication in the field of the effects of repeated exposure to a mild degree of oxygen lack. My other work has not yet been published but was submitted in the form of reports to the Committee on Aviation Medicine of the National Research Council of the United States.

Q. When were these two papers published of which you just told us; when, and were they printed by a publishing house? Did they appear in a journal or a periodical?

A. One appears in the Journal of Aviation Medicine either in September or October of 1946. The other appears in the Journal of the American Medical Association in either December or January 1946 or 1947. The publication on the effect of repeated exposure to mild degrees of oxygen lack at altitude appears in the quarterly bulletin of Northwestern University Medical School and part of the work, insofar as its effect on the elimination of the basis in the urine is concerned, appeared in the Journal of Biological Chemistry around 1944 or 1945, I am not sure of that date.

Q. Theretofore, Witness, you had thus made no publication in the field of aviation medicine before the papers of which you just gave the dates of publication?

A. The question is not clear.

Q. You just gave us the titles of the publications you have published and when; now I ask whether before the dates you just gave, you did not have any publications in the field of aviation medicine?

A. No. My first research started in 1939.

Q. You, yourself, have carried out experiments too; is that not so?

A. Yes.

Q. With human experimental subjects, of course?

A. Yes, and on myself.

Q. And with a low pressure chamber?

A. Yes.

Q. Were these frequent experiments, or were the experiments in which you, yourself, took part only infrequent in number?

A. The experiments in which I took part were infrequent in number compared to the total number of experiments which I performed.

Q. Did you take part in these experiments as the director of the experiments, as the person responsible, or were you usually the experimental subject yourself?

A. I served in both capacities. For example, I have frequently gone to the altitude of 40,000 feet to study the symptoms of bends with an intermediate pressure device, which we produced in our laboratory. I have been to 47,500 feet on three or four occasions, on one occasion at 52,000 feet for half an hour. I have frequently been to 18,000 feet without supplemental oxygen in order to study the effect of the degree of oxygen lack present there for my ability to perform psycho-motor tests.

Q. Can you tell us approximately during what year you began these experiments of your own?

A. In 1939.

Q. 1939; did you at this time carry out explosive decompression experiments too? Witness, one moment please, the English for that is “explosive decompression.” That is thus the experiment in which one ascends slowly to a certain height, let us say 8,000 meters, and then all at once suddenly one is brought up to a height of 15,000 meters; that is, first slowly up to 8,000 and then suddenly to, let us say, 15,000—that is what I understand under the term “explosive decompression” experiment, and my question is: whether you also carried out such experiments and if so when and to what extent?

A. I carried out over one hundred experiments on explosive decompression in various laboratories on animals, the rabbit, the dog, the pig, and the monkey. I did not serve as a subject myself in experiments on explosive decompression, but a student who was trained with me in physiology, Dr. J. J. Smith, did the first experiments on explosive decompression in which human subjects were used, at Wright Field. I am familiar with the work which Dr. Hitchcock did on this subject at Ohio State University in which he studied some one hundred students under conditions of explosive decompression.

Q. To what altitude, Witness; to what maximum altitude did you carry your own explosive decompression experiments?

A. In animals it was up to 50,000 feet; in the case of human subjects, the maximum was 47,500 with pressure breathing equipment.

Q. This altitude you reached in your own experiments. Now, Doctor, it would interest me to know to what maximum altitude have any experiments in explosive decompression been carried in America; what do you know about this maximum altitude?

A. I believe that 47,500 or slightly above is the maximum.

Q. Witness, do you know the German Physiologist Dr. Rein; Professor Rein, do you know his name; R-e-i-n from Goettingen?

A. Yes.

Q. At the moment he is the Ordinarius for Physiology at Goettingen, he is a rector at the university and a member of the Scientific Advisory Committee for the British Zone. On the basis of your own knowledge, do you consider Professor Rein an authoritative scientist in the field of physiology and aviation medicine?

A. I consider him an authoritative physiologist, I am not acquainted with his work in the field of aviation medicine.

Q. Mr. President, I previously put in evidence—I want to recall that now—an expert opinion from this Dr. Rein regarding Dr. Ruff. (Ruff 5, Ruff Ex. 3.) This expert testimony is from Professor Rein.

In your own experiments, Witness, you also used conscientious objectors, is that not so? Did I understand you correctly?

A. Yes, in some of the experiments.

Q. Will you tell us why you used conscientious objectors? Were they particularly adapted for these experiments; or what was the reason for you, as one conducting experiments, to use especially conscientious objectors?

A. It was their duty, their volunteer duty to render public service. They had nothing else to do but to render public service. In the experiments in which we used the conscientious objectors, they could devote their full attention to the experiments. Many of the subjects, which I have used, have been medical students or dental students, who besides serving as subjects had to attend their studies in schools. In the experiments we did on the conscientious objectors, they could not attend school at the same time and carry on or perform all the tests they were supposed to perform. For example, we used a group of conscientious objectors for repeated exposure to an altitude of 18,000 feet without the administration of supplemental oxygen. These tests involved the following of a strict diet, they involved the performance of work tests and psycho-motor tests, which required several hours every day to perform. Another group of conscientious objectors that I used were used for vitamin studies in relation to fatigue.

These conscientious objectors had to do a great deal of carefully measured work during the day as well as to perform psycho-motor tests so medical students or dental students could not be used. We had to have subjects who could spend their full time on the experiments.[[28]]

Q. Witness, from the answers that you have given so far, I am still not clear in my mind precisely why you hit upon conscientious objectors in particular as the experimental subjects. You said there were two groups of them: some were in prison and some had to perform public service. From the latter group you took your experimental subjects, but please give me a clear answer to the question: Why did you specifically use such conscientious objectors for your altitude experiments?

A. They could devote full time to the experimental requirements. They did not have to do any other work as was the case of medical students or dental students, the only other type of subjects that I had available to me.

Q. Doctor, these persons were obliged to perform public service. If these conscientious objectors had not been there or if they had been used for public service, then you would not have had any experimental subjects. There must be a specific reason why you specifically used conscientious objectors and I ask you, please, to tell me that reason.

A. Well, we could not have done the experiments unless the conscientious objectors had been available. That is the answer to your question.

Q. Could you not have used prisoners, even conscientious objectors who refused to do public service and were therefore in prison without doing any work? Could you not have used them?

A. Well, that would have meant that I and my assistants would have to go to the prison which was quite a distance away. The conscientious objectors could come to us at the university where they could live in the university dormitory or in the university hospital.

Q. Doctor, if your experiments were really important—perhaps important in view of the state of war—then it is difficult to understand why the experiments could not have been carried out in a prison, let us say. Other experiments have been carried out in prisons to a large extent, and on another occasion. Doctor, you told us that you simply had to get in touch with the prisoners; you simply wrote them a letter or you put up a notice on the bulletin board and then, to a certain extent, you had prisoners available. Can you give me no other information as to why you used specifically and only conscientious objectors?

A. No. If it had been convenient and necessary for me to use prisoners, I believe that we could have had prisoner volunteers for this work.

Q. Witness, were you ever in a penitentiary as a visitor?

A. Yes.

Q. Did you see there how the criminals condemned to death were housed?

A. Yes.

Q. Are they completely at liberty there or are the criminals condemned to death locked up in their cells?

A. They were locked up in their cells.

Q. Now, can you please tell us how a criminal condemned to death is to see the notice that you would put on the bulletin board? You told us today that it was very simple—you simply put a notice on the bulletin board—and for hours now I have been trying to figure out how a criminal condemned to death, who is locked up in his cell, is going to see that notice on the bulletin board.

A. While these prisoners are taken out for their meals, they can pass by a bulletin board, or a piece of paper with the statement on it which I read can be placed in their cells for reading or, as a large group in the dining room, the statement can be read to them.

Q. Are criminals condemned to death together at meals in America? So far as I know, there too the criminal condemned to death is given his food through an opening in the cell door; he cannot eat in a common mess hall.

A. Yes. But you must recall that I did not specify that the criminals which were used for malaria experiments were prisoners condemned to death; neither did I specify that if I were to go to a penitentiary to see if I could get volunteers for a nutrition experiment that I should select prisoners condemned to death.

Q. If you are speaking here of condemned criminals as experimental subjects, are you speaking of criminals condemned to death or just of criminals who have just received some sentence or other?

A. I have not used prisoners or criminals condemned to death. You have been using that statement. I have used prisoners.

Q. You spoke only of prisoners then?

A. That is correct.

Q. Are those prisoners in pre-trial imprisonment who have not yet been put on trial or are those prisoners who have already received some sentence?

A. Prisoners who have already received some sentence.

Q. In other words, prisoners who have been condemned or sentenced?

A. But not necessarily to death.

Q. Yes, other sentences, aside from the death sentence, included. Did you as a scientist interest yourself in the question of why a person was sentenced, for what crimes he was sentenced?

A. No, I did not.

Q. Did you at least concern yourself with the question whether the man was condemned, was sentenced by a regular court or a court martial, or an extraordinary court?

A. None of these prisoners would have been sentenced by a court martial; they would have been sentenced by an ordinary civilian court.

Q. How do you know? Did you see the personal files of these prisoners or did you see the opinions and sentences on the basis of which the prisoner had been incarcerated?

A. Only on the basis of the type of prisoner that would be incarcerated in a certain penitentiary.

Q. How do you, as a doctor, know exactly what sort of prisoner is incarcerated in this penitentiary and what sort of prisoner is incarcerated in another prison? How do you know that?

A. That’s a matter of common knowledge to one who reads the newspapers, the press, and who is generally informed on such matters. In a Federal penitentiary then you might have prisoners who have been incarcerated because of court martial.

Q. Are inmates of Federal penitentiaries used for experiments too, as far as you know?

A. Yes. They may be.

Q. In other words, political prisoners too, that is, prisoners who were condemned by a court martial or by another court?

A. We have no political prisoners in the United States.

Q. Are not prisoners condemned for high treason or treason and the like? Those are political crimes.

A. Not to my knowledge.

Q. For conspiring with the enemy during the war; such cases have not only arisen but they have also been punished, and you must know that from reading your newspaper, Professor; those are political prisoners. Do you not have those in America?

A. Not to my knowledge.

Q. Doctor, if I understood you correctly, you stated this morning that a medical experiment with fatal consequences is to be designated either as an execution or as a murder; is that what you said?

A. I did not say that.

Q. What did you say then?

A. It was more or less as I quoted it, as I remember, I said that under the circumstances which surrounded the first death in high-altitude experiments at Dachau, which Dr. Romberg is alleged to have witnessed, Dr. Rascher killed the subject; that the death could be viewed only as an execution or as a murder; and if the subject were a volunteer, then his death could not be viewed as an execution.

Q. Witness, in your opinion, is there a difference whether the experiments are to be traced back to the initiative of the experimenter himself, or whether they are ordered by some authoritative office of the state which also assumes the responsibility for them?

A. Yes. There is a difference, but that difference does not pertain, in my opinion, to the moral responsibilities of the investigator toward his experimental subject.

Q. I cannot understand that, Doctor. I can imagine that the state gives an experimenter the order, particularly during wartime, to carry out certain experiments, and that in peacetime, on his own initiative, the researcher would not carry out such experiments unless he was ordered to by the state. You must recognize this difference yourself.

A. That does not carry over to the moral responsibility of the individual to his experimental subject. I do not believe that the state can assume the responsibility of ordering a scientist to kill people in order to obtain knowledge.

Q. Witness, that is not the question. I am not interested in whether the state can order some one to murder; I am interested in the question whether, in your opinion, the state can order, let us say dangerous experiments, experiments in which perhaps fatalities may occur. In America, too, deaths occurred several times in experiments; what is your view on this?

A. The state, as far as I know, in the United States of America has never ordered scientists to perform any experiment where death is likely to occur.

Q. Doctor, I did not say where death was probable, I said where death is possible, and I ask you to answer the question I put to you. If deaths are probable, then you are correct, then it is murder. If deaths are possible, then I want to know what you say to that. And, let me remind you, Doctor, that even in the American Air Force deaths did occur; in other words, death was possible.

A. Yes, I agree that it is possible for deaths to occur accidentally in experiments which are hazardous. As I said in my testimony under such conditions when they do occur, their cause is investigated very thoroughly as well as the circumstances surrounding the death.

Q. Witness, you spoke yesterday of a number of experiments carried out in the United States and in other countries outside of Germany. For example, pellagra, swamp fever, beri-beri, plague, etc. Now, I should like to have a very clear answer from you to the following question. In these experiments which you heard of partly from persons involved in them and partly from international literature, did deaths occur during the experiments and as a result of the experiments or not? Professor, I ask you this question because you said yesterday that you examined all international literature concerning this question and, therefore, have a certain specialized knowledge on this question.

A. I also said that when one reviews the literature, he cannot be sure that he has done a complete or perfect job.

So far as the reports I have read and presented yesterday are concerned, there were no deaths in trench fever. There were no deaths mentioned, to my knowledge, in the article on pellagra. There were no deaths mentioned, to my knowledge, in the article on beri-beri, and there were no deaths in the article, according to my knowledge, in Colonel Strong’s article on plague. I would not testify that I have read all the articles in the medical literature involving the use of human beings as subjects in medical experiments.

Q. And, in the literature which you have read, Witness, there was not a single case where deaths occurred? Did I understand you correctly?

A. Yes. In the yellow fever experiments I indicated that Dr. Carroll and Dr. Lazare died.

Q. That is the only case you know of?

A. That’s all that I know of.

EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE[[29]]

CROSS-EXAMINATION

Mr. McHaney: Now, would the extreme necessity for the large scale production of typhus vaccines and the resultant experiments on human beings in concentration camps have arisen had not Germany been engaged in a war?

Defendant Rose: That question cannot simply be answered with “yes” or “no”. It is, on the whole, not very probable that without the war, typhus would have broken out in the German camps, but it is not altogether beyond the bounds of possibility because in times of peace too typhus has broken out in individual cases from time to time. The primary danger in the camps is the louse danger, and infection by lice also occurs in times of peace. If typhus breaks out in a camp that is infected with lice, a typhus epidemic can arise in peacetime too, of course.

Q. But Germany had never experienced any difficulty with typhus before the war. Isn’t that right?

A. Not for many decades, no.

Q. You stated that nine hundred persons were used in Dr. Strong’s plague experiments?

A. Yes, I know that number from the literature on the subject.

Q. What is the usual mortality in plague?

A. That depends on whether it is bubonic plague or lung pest. In one, namely, bubonic plague, the mortality can be as high as sixty or seventy percent. It also can be lower. In lung pest, the mortality is just about one hundred.

Q. How many people died in Dr. Strong’s plague experiments?

A. According to what his reports say, none of them died, but this result could not have been anticipated because this was the first time that anyone had attempted to inoculate living plague virus into human beings, and Strong said in his first publication in 1905 that he himself was surprised that no unpleasant incidents occurred and that there was only severe fever reaction. That despite this unexpectedly favorable outcome of Strong’s experiments the specialists had considerable misgivings about this procedure can be seen first of all from publications where that is explicitly stated; for example, two Englishmen say that, contrary to expectations, these experiments went off well but nevertheless this process cannot be used for general vaccination because there is always the danger that, through some unexpected event, this strain again becomes virulent. Moreover, from other works that Strong later published it can be seen that guinea pigs and monkeys that he vaccinated with this vaccine died not of the plague, but of the toxic affects of the vaccine. All these difficulties are the reason why this enormously important discovery which Koller and Otto made in 1903, and Strong in 1905, has only been generally applied, for all practical purposes, since 1926. That is an indication of the care and fear with which this whole matter was first approached, and Strong could not know ahead of time that his experiments would turn out well. I described here the enormous concern that Strong felt during all these months regarding the fact that that might happen which every specialist feared, viz., that the virus would become virulent again. That is an enormous responsibility.

Q. Be that as it may, nobody died. That is a fact, isn’t it?

A. If anyone did die, the publications say nothing about it. There were deaths only among the monkeys and guinea pigs that are mentioned in the publication. If human beings died, there is no mention in the publication. It is generally known that if there are serious accidents in such experiments as this, they are only most reluctantly made public.

Q. Now, Professor, I have no wish to limit you but, as I understand it, you have explained these things in considerable detail during the four days in which you have already testified. If you can give a short answer to my question that is all I want. If I want any further explanation I’ll ask you for it.

Now, what is the normal death rate in beri-beri?

A. That depends on the medical care given. If the care is good, the mortality is zero, and if they have no medical care at all, then a lot of them die.

Q. Sixty to eighty percent would probably die if they were not treated. Is that right?

A. Beri-beri lasts for many, many months before a person dies, and usually one does not die of beri-beri in sixty days—that would be a severe case.

Q. How many people did Strong use in his beri-beri experiments? Is twenty-nine all you know about?

A. So far as I know from the literature, the number was twenty-nine.

Q. Well, it says in the literature that he used only twenty-nine. Is that right?

A. So far as I know, yes.

Q. And one of those died?

A. According to what the literature says, one of them died.

Q. What is the mortality in typhus?

A. That varies enormously. It depends on the epidemic. In some epidemics the mortality is five percent. In general, you count on a mortality of twenty percent. In the Serb-Albanian epidemic in 1915, there was a mortality of seventy percent, but that mortality rate is so extraordinarily high that it is generally assumed that probably, in reality, there were more cases of typhus than were actually reported.

Q. Well, we could take roughly five to thirty percent as the mortality. Is that right?

A. Yes. That is what the textbooks generally say.

Q. What was the mortality in the Buchenwald experiments, Professor?

A. In the controlled cases in the experiments that I knew of, the mortality rate was thirty percent.

Q. Among the controls, you figured thirty percent?

A. Yes. There were ten control persons in the first group of experiments, and of them, three died.

Q. Three died? Well, but I assume that you have read through the Ding diary and let us assume for the moment that it is correct. Didn’t you say that they also used control persons in the four or five other series of experiments?

A. In the controlled cases where they were testing the vaccine, the general mortality rate was thirty percent. But then there were these therapeutic experiments in which, according to the diary, blood infections were undertaken and, in this case, the diary does mention an unusually high mortality rate.

Q. Well, Professor, for your information, we have figured out five control series in the Ding diary, and I mean by controls those that were not treated with anything. The mortality ranges between fifty-four to one hundred percent and averaged eighty-one percent. Do you accept those figures as correct? I mean, do you think that’s right?

Q. No. That does not correspond with the impression I got from the numbers in the diary, but I did not calculate it so precisely as all that. I looked at the individual experiments and it is true that, for instance, in these therapeutic experiments, Ding’s work mentions a mortality of something like fifty to fifty-five percent, and then there is one series that deals with blood infection where of twenty people, I believe nineteen died.

Q. Let me put it to you, Professor, is it not a fact that they were not dealing with epidemic typhus in Buchenwald, but with a super-typhus, developed from man to man passage, which was much more virulent and much more deadly than any typhus you could expect in an epidemic?

A. That I cannot judge because I have no knowledge of the work done in Buchenwald and can only refer to what Ding’s diary says, which I regard as unreliable.

Q. Well, if you regard it as reliable, Doctor, and if you figure out the deaths among the untreated control persons and find a mortality which averaged eighty-one percent, will you not, as a scientist and an expert on tropical diseases, concede that they had developed a highly virulent, something we might call a super-typhus, in Buchenwald? Isn’t that right, Professor?

A. As a scientist, I am accustomed to state my opinion on the basis of reliable documentation and not on the basis of such falsifications which are produced for a special purpose.

Q. I can appreciate that you do not regard the document as reliable, Professor, but we will investigate that a little later.

[1] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[2] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.

[3] See section on Status of Occupied Poland under International Law, vol. I, pp. 974-979.

[4] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 11020-11048.

[5] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11268-11288.

[6] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. ’47, pp. 2301-2661.

[7] Complete testimony is recorded in mimeographed transcript, 15, 16 Apr. 1947, pp. 5926-5994.

[8] Complete testimony is recorded in mimeographed transcript, 12, 13, 14 June 1947, pp. 9029-9824.

[9] Closing statement is recorded in mimeographed transcript, 14 July 47, pp. 10718-10796.

[10] United States vs. Erhard Milch. Concurring Opinion of Judge Musmanno, vol. II, sec. VII, B.

[11] See also excerpts from the closing brief for the defendant Karl Brandt (Section VIII E, vol. I, pp. 983-990).

[12] Final plea is recorded in mimeographed transcript, 15 July 47, pp. 10874-10911.

[13] Art. 59 of the German Penal Code reads:

“If a person in committing an offense did not know of the existence of circumstances [Tatumstaende] constituting the factual elements of the offense as determined by statute [gesetzlicher Tatbestand] or increasing the punishment, then these circumstances may not be charged against him.

“In punishing an offense committed through negligence, this provision applies only insofar as the lack of knowledge does not in itself constitute negligence for which the offender is responsible.”

[14] Complete testimony is recorded in mimeographed transcript, 26, 27, 28, 31 March, 1, 2, 3 Apr. 47, pp. 5000-5244, 5334-5464.

[15] Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 47, pp. 9029-9324.

[16] Final plea is recorded in mimeographed transcript, 18 July 47, pp. 11289-11309.

[17] Final plea is recorded in mimeographed transcript, 17 July 47, pp. 11128-11152.

[18] Complete testimony is recorded in mimeographed transcript, 26, 27, 28, 31 March, 1, 2, 3 Apr. 47, pp. 5000-5244, 5334-5464.

[19] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 47, pp. 6081-6484.

[20] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[21] Final plea is recorded in mimeographed transcript, 15 July 47, pp. 10874-10911.

[22] Final plea is recorded in mimeographed transcript, 17 July 47, pp. 11128-11152.

[23] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 1947, pp. 6081-6484.

[24] Professor of History of Medicine at Erlangen University.

Complete testimony is recorded in mimeographed transcript, 27 Jan. 1947, pp. 1961-2028.

[25] Complete testimony is recorded in mimeographed transcript, 12, 13, 14 June 1947, pp. 9029-9324.

[26] Final plea is recorded in mimeographed transcript, 16 July 47, pp. 10972-10994.

[27] Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 47, pp. 9029-9324.

[28] To the question of conscientious objection in the United States, see Section VIII E—Voluntary Participation of Experimental Subjects, cross-examination of Dr. Ivy (vol. I, p. 944 ff.).

[29] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 47, pp. 6081-6484.

IX. RULING OF THE TRIBUNAL ON COUNT
ONE OF THE INDICTMENT[[30]]

Presiding Judge Beals: The Secretary General will note for the record the presence of all the defendants in Court.

The Tribunal will now announce its ruling on the motion of certain defendants against Count I in the indictment concerning the charge of conspiracy.