The gravity of the experiment must stand in a certain proportion to the gravity of the crime. The expiation must be such as can be expected. This very idea of the reasonableness of the demand is expressed in the malaria experiment mentioned where reference is made to the socially negative attitude of the persons subjected to experiments, thus applying the idea of expiation.
The same fundamental idea might have led to the resolution to use conscientious objectors for the experiments. It seems that here expiation has been demanded from the same point of view of a socially inimical attitude. It does not seem unfair if a conscientious objector, as a deserter, is subjected to experiments if he adopts this attitude only in wartime and if this attitude helps him to escape behind prison walls, thus withdrawing from dangers which the soldier at the front has to bear for the sake of the community. For the soldier, this danger may consist in a dangerous epidemic disease, to which he is exposed in wartime especially.
The idea of compulsory experiments in the sense of an experiment of expiation has been proposed as an expiation measure with regard to prisoners of war and political prisoners and has not been objected to even by the public. So the less ethically orientated opinion of the day frequently expresses the view that experiments on criminals should be carried out for the purpose of expiation.
Even in the press these opinions have their representatives. So among others a reference appeared in the London paper “The People” of 3 March 1946 (Karl Brandt 114[[163]]) There the following is said: “People believe that all these men (the defendants at the International Military Tribunal) will die. It is the opinion of many that they ought to have died months ago and ought to have been shot three days after arrest by court-martial sentence. Others are of the opinion that they should expiate their crimes by being subjected to cancer, leprosy, and tuberculosis experiments.”
It is significant in this excerpt that it is a well-known English author, Llewellyn who passes it on, and he does not adopt a disapproving attitude to it.
Accordingly, it can be ascertained that such experiments of expiation on political opponents, prisoners of war, and civilians can be looked upon as reasonable and admissible, if these persons, as convicted criminals, are subject to punishment and if the law relating to the serving of sentences permits experiments of that kind.
The Geneva Convention in Article 46 provides for a restriction only insofar as no punishments may be inflicted on prisoners of war apart from those that are admissible for members of the army of one’s own country; the same must be applied to civilians.
In comparison with this, no restrictions exist with regard to the execution of punishment in cases of criminal offenses. Therefore the penal execution law, admissible in each state, can be applied.
If therefore compulsory experiments for expiation can be carried out on an American citizen, they could be applied in the same way to a German prisoner of war, assuming that the latter has been sentenced under penal law. In accordance with this, the same must be admissible in the execution of German penal law if the foreign prisoner has been legally sentenced to punishment.
The foreign criminal is not in a better position than the subject of one’s own country.