On the other hand the Tribunal will make itself acquainted with the literature collected by the defense as evidence. If one reads this literature one loses one’s self-confidence and cannot conclude without admitting that these are problems which persons not considered criminals tried to solve before the defendants. These are problems of the community. The individual may make suggestions for their solution, but the decision is the task of the community and therefore of the state. The question is how great a sacrifice may the state demand in the interest of the community? This decision is for the state alone.
How the state decides depends on its free discretion, and finds its limit only in the rebellion of its citizens. In obeying the orders of his state, the defendant Karl Brandt did no wrong. If sentence is passed against him, it would be a political sentence against the state and the ideology it represents.
One can condemn the defendant Karl Brandt only by imposing on him the duty of rebellion and the duty of having a different ideology to his environment.
It is contended that the state finds its limits in the eternal basic elements of law, which are said to be so clear that anyone could discern their violation as a crime, and that loyalty to the state beyond these limits is therefore a crime. One forgets that eternal law, the law of nature, is but a guiding principle for the state and the legislator and not a counter-code of law which the subject might use as a support against the state. It is emphasized that no other state had made such decisions up to now. This is true only to a certain extent. It is no proof, however, that such decisions were not necessary and admissible now. There is no prohibition against daring to progress.
The progress of medical science opened up the problem of experiments on human beings already in the past century, and eventually made it ripe for decision. It is not the first time that a state has adopted a certain attitude with regard to euthanasia with a change of ideology.
Only the statesmen decide what is to be done in the interests of the community, and they have never hesitated to issue such a decision whenever they deemed it necessary in the interest of their people. Thereupon their rules and orders were carried through under the authority of the state, which is the basis of society.
Inquisition, witch trials, and revolutionary tribunals have existed in the name of the state and eternal justice, and the executive participants did not consider themselves criminals but servants of their community. They would have been killed if they had stood up against what was believed to be newly discovered eternal justice. What is the subject to do if the orders of the state exceed the customary limits which the individual himself took for inviolable according to tradition.
What did the airman think who dropped the first atomic bomb on Hiroshima? Did he consider himself a criminal? What did the statesmen think who ordered this atomic bomb to be used. We know from the history of this event that the motive was patriotism, based on the harsh necessity of sacrificing hundreds of thousands to save their own soldiers’ lives. This motive was stronger than the prohibition of the Hague Convention, under which belligerents have no unlimited right in the choice of methods for inflicting damage on the enemy.
“My cause is just and my quarrel honorable,” says the king. And Shakespeare’s soldier answers him: “That’s more than we know.” Another soldier adds: “Ay, or more than we should seek after; for we know enough if we know we are the king’s subjects; if his cause be wrong, our obedience to the king wipes the crime out of us.”
It is the hard necessity of the state on which the defense for Karl Brandt is based against the charge of having performed criminal experiments on human beings.