We must examine whether this consent of the person subjected to experiments is always necessary or whether it can be replaced by an order of the state through the penal administration, and further, if the same law applies to the execution of sentences on foreigners. If consent to the human experiment by the person experimented on can be replaced by an order of the state, then the person responsible for the experiment cannot be punished in cases where the experiments were carried out through the official penal administration in accordance with the order.
No legal regulations regarding the question of admissibility of medical experiments in civilized countries are known. However, it is a fact that such experiments have been carried out to a greater or lesser extent within the memory of man in all countries and up till now have remained unopposed. But with the development of medical knowledge and modern methods of research, experiments on human beings have increased considerably. Today, when research, to solve its problems and meet its challenges, has advanced into the most widely differentiated spheres, they are considered absolutely necessary. Accordingly, human experiments will continue to increase with the progress of science and the problem that this trial has raised will always be urgent.
Moreover, reference is made to the opinion of the Washington anatomist, E. V. Cowdry, on the necessity of human experiments in cancer research (Karl Brandt 50, Karl Brandt Ex. 56), and the order for human experiments on the part of the British Military Government for Professor McCance in Wuppertal. The knowledge of such experiments on human beings was, as literature shows, at first limited to medical specialist circles and the official authorities concerned. Only in recent times has the public been cautiously informed. (Becker-Freyseng 60, Becker-Freyseng Ex. 58.) Complete instruction of the public is only necessary so that, in case of an eventual discussion, sound judgment of the actions of the researcher may be possible.
Reference is also made to the remarkable publication on the malaria experiment on 800 prisoners in the United States, published in the widely circulated periodical “Life” (Karl Brandt 1, Karl Brandt Ex. 1). The number of the imprisoned persons to be experimented upon was even more than 2,000, according to the radio account submitted.
Repeated reports on such experiments have so far been received without opposition by specialist circles, the authorities, and also the general public. From that can be gathered what in principle is considered permissible and right by competent authorities and the public. The experiments actually carried out are a mirror of the existing laws and one can by way of legal sociological investigation find the norms of law that have validity. This is done where the law is not codified. In the same manner, the International Military Tribunal has derived the existing international law on the basis of its phenomena and the same procedure leads to the determination of the common law. Inasmuch as positive regulations exist in the United States which are contradictory to the law derived from the phenomena, these legal regulations must be produced or else the conclusions that can be drawn from the experiments must be regarded in favor of the defendant as valid law and an expression of fundamental principles of punishment.
The defense has in the present situation only very limited literature at its disposal for the comprehension and explanation of these legally important facts of the case. However, the little that is available is already so revealing that one must come to the conclusion that medical experiments on human beings are not only admissible on principle, but in addition, that it also does not violate the basic principles of criminal law of civilized nations to carry out experiments on convicts.
The question today is not whether experiments on human beings may be carried out but only under what circumstances and how these experiments may be undertaken. Moreover, the prosecution itself has declared that human experiments are admissible on principle.
It is not intended here to go into the experiments which were made on the healthy and the sick and corpus vile at the time when modern research was in its infancy and without participation of government authorities. Insight into those times can be obtained from the book by the Russian physician Wressajew “Confession of a Physician” (Karl Brandt 48, Karl Brandt Ex. 55), published about 1900. The book reveals some of the experiments that were then known to medical experts and it follows that the governments did not interfere but in the interest of medical progress permitted such experiments without trying to protect the individual as the person experimented upon. The states then either considered such experiments compatible with criminal law, or they acquiesced in the camouflaging of the “voluntariness” of the person experimented upon which was customary in consideration of the law. No governmental intervention as the result of such medical experiments is known.
With the development of health administrations, governmental supervision has been increasingly instituted in all countries and one can consider all that was admitted in medical experiments with the consent of the administration and without opposition as the sediment of the existing law. This is true particularly of recent times where governmental direction is on the increase.
Particular attention must be given here to the experiments in state institutes on convicts and those sentenced to death.