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.