In this connection the following must be pointed out:

I have already explained that the experimental subjects, on whom the sulfanilamide experiments forming the subject of this case were performed, came under German jurisdiction, even if one holds the opinion that Poland’s case was not one of genuine “debellatio” but only of “ocupatio bellica”.[[3]] However, whatever opinion one might hold with regard to this question, there can be no doubt that assuming an emergency according to international law, the performance of the experiments would have been justified even if at the time the experimental subjects had still been citizens of an enemy nation. Decisive for the regulation of the conditions of such persons according to international law are the “Regulations Respecting the Laws and Customs of War on Land” annexed to the Hague Convention, dated 18 October 1907. According to the above statements, however, even a violation of such special conventions, as contained for instance in the special prohibitions of Article 23, is justified during a genuine war emergency. The fact that the special conditions characterizing a real war emergency are existent invalidates the objection that citizens of another country should not have been used for the experiments.

The Evaluation of Conflicting Rights and
Interests as Legal Excuse

According to well-considered opinions, we must start from the premise that the defendants, both in principle and in procedure, are to be tried according to German criminal law. They lived under it during the period in question and were subject thereto. For this reason I wish to approach one more viewpoint which should be considered independently, and in addition to the legal excuses already mentioned, when judging the conduct of the defendants.

For many years the legal provisions for emergency cases have proved inadequate. For a long time an endeavor was made to fill the gaps with theoretical explanations of a general nature, and finally the Reich Supreme Court handed down basic decisions expressly recognizing an “extra legal emergency”. The considerations on which they were based are known as the “objective principle of the evaluation of conflicting rights and interests.” In the legal administration of the Reich Supreme Court and in further discussions this principle, to be sure, is combined with subjective considerations of courses of action taken by the perpetrator in the line of duty. Therefore it is necessary to discuss both considerations, that of evaluating conflicting rights and interests and that of compulsion by duty together, even if we must and shall keep them distinctly separated for the time being.

The consideration of an evaluation of conflicting rights and interests as legal excuse is generally formulated as follows:

“Whoever violates or jeopardizes a legally protected right or interest of lesser value in order to save thereby a legally protected right or interest of greater value does not act in violation of the law.”

The lesser value must yield to the greater one. The act, when regarded from this point of view, is justified, its unlawfulness—and not merely the guilt or the perpetrator—is cancelled out.

This so-called principle of evaluating conflicting rights and interests is first of all a formal principle which establishes the precedence of the more valuable right or interest as such. This formal evaluation principle requires on its part a further material evaluation of the rights or interests comparatively considered. This evaluation again requires the adoption of the law and its purport to the general attitude of a civilization and, finally, to the conception of law itself.

Let us examine the conclusions to be drawn from this legal situation in our case: Agreement and so-called likely agreement, just as well as a national emergency and a war emergency, constitute special legal justifications, the recognition of which allows us to dispense with a recourse to the general principle of evaluating conflicting rights and interests. The latter retains its subsidiary importance. Furthermore, those two special legal justifications refer in their purport to a fair and equitable way of thinking as well as to the proportional importance of various types of evils; thus they themselves include the conception of evaluating conflicting rights and values. For this reason, among others, the following must be explained in detail at this point: