However, other courts and scientists base their reason for justification upon “action for the benefit of the injured person”. If correctly viewed, no actual contradiction to an assumed comment could be seen therein. On the contrary one may say perhaps that this could be considered as an independent argument for justification.

In modern literature and judicial practice, the tendency prevails to combine the two last mentioned viewpoints by demanding them cumulatively. It is not comprehensible, however, why such simultaneous existence of two arguments for justification should be required when each argument in itself is decisive.

A well-known teacher of criminal law in Germany stated the following conception of this idea: “Should the injured person not consent, the action in his behalf and for his benefit is to be considered lawful if his consent could have been expected according to an objective judgment. The primary justifying argument here is not that the injured person has waived his right of decision, but that a positive action was performed for his benefit.”

The practical result, in spite of the theoretical objections raised against such a combination, could hardly be different. For the “objective judicial sentence based on probabilities,” here applied for, which is decisive and upon which the so-called supposed consent would have to be based, will regularly result from an action that under given circumstances is performed for the “benefit of the injured person.”

Applying these general principles to the sulfanilamide experiments, there can hardly be any doubt that the experimental subjects would have agreed if they had been fully aware of their position. The experimental subjects had already been sentenced to death and their participation in these experiments was the only possibility for them to avoid execution. If the Tribunal now tries to assess the probability that the experimental subjects would have agreed to submit to those experiments if they had had full knowledge of the position and the certainty of their eventual execution, there can in my opinion be very little doubt as to the result of this examination.

Nor can there be two opinions regarding the question whether, under circumstances prevailing at that time, the utilization of the prisoners for these experiments was “in the interest of the wounded”.

The evidence has shown that the other members of the Polish Resistance Movement, who were sentenced to death by court martial and who were in the concentration camp at Ravensbrueck awaiting the confirmation of the verdict which was given by the Governor General of the occupied Polish territory, were really shot only after a complicated and protracted procedure. Their participation in these medical experiments was the only chance for them as condemned persons to save their lives. Their participation in these experiments was not only in their interest but it also seems to be inconceivable that the prisoners, if they had been fully aware of their position and had known of the forthcoming execution, would not have given their consent for the experiments.

The Defendant’s Erroneous Assumption of an Agreement by the
Experimental Subjects

The evidence has shown that the experimental subjects in Camp Ravensbrueck were not selected by the defendant Karl Gebhardt nor by any of the other defendants, but that the selection was made by the competent agency within the Reich Security Main Office in Berlin or the political department of the Ravensbrueck concentration camp. During the conference at the beginning of July 1942, in which the conditions for the experiments were agreed upon, it was expressly assured that the experimental subjects were persons sentenced to death who were to be pardoned if they survived the experiments.