The question has repeatedly come up in this trial whether or not the experimental subjects in the Dachau high-altitude experiments by Ruff-Romberg were volunteers, although the people were in detention, that is to say, indisputably under duress.
The expert Professor Dr. Leibbrandt has held to his one-sided opinion in this respect too, and has advocated the theory that prisoners can never be regarded as volunteers. This opinion is doubtlessly false; in other times, the expert perhaps would not have supported it. For the administration of justice in other cases also accepts legally binding statements of prisoners, and does not think of declaring them legally ineffective, only for the reason that the prisoner in consequence of his imprisonment finds himself in an embarrassing situation, and therefore not completely master of his own free will.
One surely is not mistaken in supposing that none of the defendants, even if he has ever such great experience as a medical man, at that time thought without exception of all the possibilities which we have to consider now, when for many months we have had to search for the legal basis of the whole problem of human experiments, and have had to think of all eventualities. According to his sentiment, at that time each physician and research man said to himself: If the experimental subject agrees to the experiment, everything is all right. For this always appeared to the physicians to be the highest principle: An experiment is legal if the experimental subject agrees to it, provided that the physician observes the necessary care when performing the experiment. As proved here by this trial, there exists in no country a written law regulating the legal conditions of experiments on humans. On the other side, however, the human experiment is such a far-reaching and often such an indispensable matter that one might speak of an unwritten law, which generally and tacitly is accepted and acknowledged by the whole world. Counsel for some of the defendants have demonstrated to the Tribunal in their document books the opinion of the whole world on this unwritten law, in the most varying degrees, from the absolutely harmless to the absolutely deadly experiment, and has certainly thereby compiled valuable material which is suitable for forming the basis of a codification of this unwritten medical law and to show safe future roads for the development of justice in this sphere. Lacking a written law, the physician and research man even today can only recognize the conventional legal concept as a rule for his conduct as expressed in international medical literature.
When reading this international literature, however, there cannot be any doubt that the volunteering of the experimental subjects warrants in every case the legality of human experiments, and that, therefore, the more sentimental attitude of our research workers was right when, because of their knowledge of international literature, they made the question of the legality of human experiments depend in the first place on the voluntariness of the experimental subjects.
As far as one can see, international medical literature up to date nowhere represents the opinion that the consent of a prisoner is ineffective because, by reason of his imprisonment, he had no free will. On the contrary, in many cases it has taken an important step forward, and had frequently, without meeting any opposition, reported on experiments performed on prisoners whose consent was not regarded as essential. Many experiments, some of which were reported on here in Court, and some of which are described in the documents submitted by the defense, demonstrate clearly that obviously the opinion prevails everywhere that in the case of prisoners, in particular those who have been sentenced to death, the consent of the prisoner to the experiment can be replaced by the permission of the authorities, even in the case of experiments which were very dangerous and where fatalities occurred in more or less large numbers. The published reports also talk about the number of deaths in the experiments described, some slightly camouflaged but to a large extent openly, without the research worker or the reader realizing that murderous actions were being reported, because otherwise the reaction would have been a completely different one.
The question becomes particularly acute if these experiments were carried out in a totalitarian state or during a total war. It is not the point in this connection whether a dictatorial regime is desirable or should be rejected, nor whether a war as such appears to be criminal (for example because it will be judged as an aggressive war later on); the attitude that, under such exceptional conditions as exist in a dictatorship or total war, even life-endangering experiments on human beings may perhaps be more justified than under normal conditions is obviously based on the thought that the state governed by dictatorship can and will ask for greater sacrifices, from criminals too, especially during total war.
As a matter of fact the following thought appears to have occurred to many a defendant during this trial: During a total war the state asks everybody to be ready at any time to serve at the front, and during the aerial war every woman and every child at home is exposed daily and every hour to mortal danger; many a citizen would therefore think it unsatisfactory if a criminal, who is burdened with heavy guilt or may even have committed a crime punishable with death, remains free from all danger, in other words is in a better position than the upright citizen.
It appears now that many an experimental subject who was used at that time for experiments was of the same opinion, because the witness Karl Wolff stated on oath that the prisoners to whom he spoke in Dachau said, that “they would contribute voluntarily to Germany’s war effort and show a sign of their actual good will.” (Ruff 21, Ruff Ex. 20.) The same ideas were also stated by various defendants during their interrogation.