2. The same reasoning, however, as applied to self-defense is also applicable to the conception of an emergency, as embodied, for example, in Section 54 of the German Penal Code and in almost all modern systems of penal law. These provisions, too, were originally conceived to cover individual cases. But, using them as a starting point, legal literature and the administration of justice arrive at a recognition in principle of a national emergency with a corresponding effect. With regard to the definition of the concept of an emergency generally given in the penal laws, the application of these provisions to the state, while justified in itself, can only be effected in principle.

When the idea of an emergency is applied to the state and when the individual is authorized to commit acts for the purpose of eliminating such a national emergency, here, as in the case of the ordinary emergency determined by individual conditions, the objective values must be estimated. The necessary consequences of conceding such actions on the part of the individual must be that not only is he absolved from guilt, but moreover his acts are “justified”. In other words, the so-called national emergency, even though it is recognized only as an analogous application of the ordinary concept of emergency in criminal law, is a legal excuse. But what does “application” in principle to the cases of national emergency mean? Whether a national emergency is “unprovoked” or not, whether, for example, the war waged is a “war of aggression” can obviously be of no importance in this connection. The existence of the emergency only is decisive. The vital interests of the commonwealth and the state are substituted for the limitation of individual interests. Summarizing, we can define the so-called national emergency as an emergency involving the vital interests of the state and the general public which cannot be eliminated in any other way. As far as such emergency authorizes action, not only may a legal excuse be assumed but a true ground for justification exists.

I shall examine later how far an erroneously assumed national emergency, a so-called putative emergency, is possible and is to be considered as a legal excuse. What consequences arise from this legal position in the case of the defendant Karl Gebhardt?

1. As proved by the evidence the general situation in the various theaters of war in the year 1942 was such that it brought about an “actual”, that is, an immediately imminent danger to the vital interests of the state as the belligerent power and to the individuals affected by the war. The conditions on the eastern front in the winter of 1941-42 as they have been repeatedly described during the submission of evidence created a situation which endangered the existence of the state, through the danger of wound infection and the threat to the survival of the wounded and the fighting strength of the troops arising therefrom.

It must be added that the past World War was fought not only with man and material but also with propaganda. In this connection I refer to the statements of the defendant Gebhardt in the witness stand as far as they concern information given to him by the Chief of Office V of the Reich Security Main Office, SS Gruppenfuehrer Nebe. This information shows that at that particular time the enemy tried to undermine the fighting spirit of the German troops with pamphlets describing the organization and material of the German Wehrmacht Medical Service as backward, while on the other hand praising certain remedies of the Allied Forces, for instance penicillin, as “secret miracle weapons”.

2. The assumption of a state of national emergency presupposes that the action forming the subject of the indictment was taken in order to remove the danger. By this is meant the objective purpose of the action, not just the subjective purpose of the individual committing the action. The question, therefore, is whether the sulfanilamide experiments were an objectively adequate means of averting the danger. This, however, does not mean that the preparations really were an adequate means of expertly combatting the danger. According to the evidence there can be no doubt that these assumptions really did exist.

3. Finally, there must not be “any different way” of eliminating the national emergency. One must not misunderstand this requirement. Not every different way, which could be pursued only by corresponding violations, excludes an appeal to national emergency. The requirement mentioned does not mean that the way of salvation pursued must necessarily be the only one possible. Of course, if the different possibilities of salvation constitute evils of different degrees, the lesser one is to be chosen. It must also be assumed that a certain proportion should be kept between the violation and the evil inherent in the danger. In view of the fact, however, that in the present case many tens of thousands of wounded persons were in danger of death, this viewpoint does not present any difficulty here.

According to the evidence there can be no doubt that a better way could not have been chosen. On the contrary, it has been shown that in peacetime as well as in wartime everything was tried without success to clarify the problem of the efficacy of sulfanilamides. And the fact, too, that prisoners were chosen as experimental subjects who had been sentenced to death and were destined for execution, and to whom the prospect of pardon was held out and actually granted cannot be judged in a negative sense. This fact cannot be used as an argument when examining the legal viewpoint, because participation in these experiments meant the only chance for the prisoners to escape imminent execution. In this connection I refer to the explanations I have already given in connection with the so-called probable consent.

Excuse

In addition to the general national emergency discussed, the literature of international law recognizes also a special war emergency. According to this, “in a state of self-defense and emergency, even such actions are permitted which violate the laws of warfare and therefore international law.” But in the sense of international law the “military necessity of war” which by itself never justifies the violation of the laws of warfare differs from self-defense and emergency. Emergency and necessity of war, however, are different concepts. The emergency due to which the self-preservation and the self-development of the threatened nation are at stake justifies, according to general principles recognized by the national laws of all civilized countries, the violation of every international standard and thus also of the legal principles of the laws of warfare. When applying the concepts of self-defense and emergency as recognized by criminal and international law, the illegality of violations committed is excluded if the nation found itself in a situation which could not be relieved by any other means.