The Nuremberg Medical Trial – How Just? How Fair? How Important?

Running Head: The Nuremberg Medical Trial – How just? How fair? How important?

The Nuremberg Medical Trial – How just? How fair? How important? Kathleen Hossler University of Florida 2017

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Table of Contents

Abstract ...... 3

Statement of Purpose ...... 4

Introduction ...... 7

Literature Review ...... 19

Policy Implication ...... 33

Conclusion ...... 35

References ...... 37

Appendix A ...... 40

Appendix B ...... 42

Appendix C ...... 43

Appendix D ...... 44

Appendix E ...... 45

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Abstract

The Nuremberg Trials have been a point of contention over the years regarding their justness, fairness, and importance. Subsequent Nuremberg trial, United States of America v. Karl

Brandt, et al., also known as the Nuremberg Medical Trial or Doctors’ Trial, will provide insight into the procedural shortcomings and overall value of the trial. To measure the trial’s justness, fairness, and importance, this article will look into the tribunal itself (including the medical experiments), retroactive law and victor’s justice, the creation and function of law, natural law theory, Judge Harold L. Sebring’s Personal Papers Regarding the Nuremberg Medical Trial, and the Nuremberg Code. This article will delve into what made the trial unfair through criticisms such as retroactive law and victor’s justice. Then, the overarching need for a trial will be made clear through the natural theory of law as its philosophy demanded a trial and hence, justice.

Judge Harold Sebring’s personal notes will also be highlighted as they give a first-hand look into the complexities of the tribunal. While United States of America v. Karl Brandt, et al. does have its flaws, the overall importance and underlying justness of the tribunal is determined and substantiated.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Statement of Purpose

A major purpose of this thesis is to review the atrocities of Nazi physicians and administrators under the Nazi regime and analyze how just, how fair, and how important this tribunal was. This paper will cover the trial itself, the criticisms of retroactive law and victor’s justice, the creation and function of law, the theory of natural law, Judge Harold L. Sebring’s

Personal Papers Regarding the Nuremberg Medical Trial, and the Nuremberg Code. Reviewing the Nuremberg Medical Trial with all its components will help in understanding the tribunal in order to measure its justness, fairness, and importance.

United States of America v. Karl Brandt, et al. placed Nazi medical experiments on trial for the whole world to see. Examining the unethical research experiments carried out on human prisoners without their consent will help in recognizing the necessity and significance of the trial.

To understand the gravity of the crimes, this paper will look into the indictments that the defendants were charged with as well as the medical experiments the Nazis conducted. Then, a synopsis of the defense strategy will provide legal insight into the fairness of the tribunal through the defendants’ accusations of retroactive law and victor’s justice. Meanwhile, an investigation of the prosecution strategy will help in understanding how the United States pursued justice and why the Nazis had to be put on trial. Through these two adversarial strategies, the strengths and faults of the trial will be recognized and examined. Ultimately, the goal of this introduction is to present an overview of the basics of the trial so that one can adequately measure the tribunal’s justness, fairness, and importance and provide the setting for Judge Harold Sebring’s personal judicial notes.

The purpose of the literature review is to delve deeper into the opposition towards retroactive law and victor’s justice through the analysis of law itself and most importantly, Judge

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Harold L. Sebring’s Personal Papers Regarding the Nuremberg Medical Trial. The creation and function of law will be explored to gain a better understanding of how the trial was conducted and how the trial was just. Then, the theory of natural law will provide insight into the United

States’ reasoning for a subsequent Nuremberg Trial. Meanwhile, Judge Harold Sebring’s personal judicial notes will be highlighted with the intention of gaining a first-hand look at the tribunal and the thought process behind one of the sitting judges, namely Judge Harold Sebring.

This review will then culminate into a measurement of the fairness and justness of United States of America v. Karl Brandt, et al. Last, the policy implication through the Nuremberg Code will illustrate the impact that the Nuremberg Medical Trial has left on international law and how the tribunal set precedent for ethics in medical research.

Examining United States of America v. Karl Brandt, et al. along with the complications of retroactive law and victor’s justice is a major undertaking. Given the enormity of the tribunal, it is imperative to note that the subsequent analysis should not be regarded as a complete review of the literature on this subject. It should also be noted that as an undergraduate student, I do not have any formal training regarding the studies or application of the law. Furthermore, the history of the Holocaust and its implications barely scratch the surface within this study due to the subject’s breadth. A significant limitation of this review is the inability to delve into every facet of the tribunal. For instance, the formation of the trial through treaties and charters together with pre-trial investigations that produced the evidence for a trial to be proposed are not heavily explored due to the necessity of honing in on the highlights of this paper’s argument.

Consequently, while all four indictments will be summarized, only two will be prominently featured due to their direct link with the medical experiments and as in Judge

Harold Sebring’s case and also with this thesis, time will not allow me to describe these

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 experiments at length, with its evidentiary documents and witness statements. Moreover, an in depth psychological analysis of the defendants’ mentalities is not conducted due to the subject’s own complexities in which a thesis of its own could be achieved. While these limitations narrowed the focus of the thesis, this paper nonetheless is an opportunity for future researchers to expand on or take in a new direction.

The objective of this thesis is to highlight the significance of United States of America v.

Karl Brandt, et al. criticisms and all. The retroactive law and victor’s justice defense sheds light on the shortcomings of the tribunal which in turn helps measure its fairness. Then, the theory of natural law and Judge Harold L. Sebring’s Personal Papers Regarding the Nuremberg Medical

Trial prove the immense importance of holding a tribunal and bringing the Nazi medical doctors and administrators to justice. After reviewing the tribunal with all of its components, it can be argued that United States of America v. Karl Brandt, et al. was not legally fair by procedural standards but it was just and is important due to the tribunal being morally right. Because of the tribunal’s moral component, the need to have a trial outweighed the aspects deemed unfair by the defendants. Overall, this thesis will hopefully shed light on the complexities of the law and inspire future research to keep the history of World War II, the Nuremberg Trials, and the

Holocaust alive and relevant.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Introduction

The first “special trial” of a series of US military tribunals in Nuremberg, Germany was

United States of America v. Karl Brandt, et al., otherwise known as the Doctors’ Trial or

Nuremberg Medical Trial. This trial was not a Four-Power trial like the Nuremberg Trial of

Major War Criminals; it was a US-sponsored trial. With the passing of Control Council Law No.

10 in 1945, the Allies were given the power to set up subsequent military tribunals to prosecute war criminals in their separate occupational zones (see Appendix A). This subsequent

Nuremberg trial delved into the ethics of Nazi medicine and medical war crimes. The tribunal opened on December 9, 1946 through August 20, 1947 and was conducted in two languages –

English and German. Chief of Counsel for the Prosecution was Telford Taylor and the Chief

Prosecutor was James M. McHaney. Meanwhile, the presiding judge was Walter B. Beals with

Harold L. Sebring and Johnson T. Crawford as sitting judges (Sebring, n.d.; Weindling, 2004).

Next, the tribunal consisted of twenty-three defendants composed of medical doctors and

Nazi administrators. Nazi high officials like Adolf Hitler and Heinrich Himmler committed suicide thereby escaping justice by death. Additionally, infamous Nazi physician, Josef Mengele escaped to Argentina, eluding his captors until his death by natural causes. Despite this, the

United States was able to compose a list of significant defendants to indict which include: Karl

Brandt, Siegfried Handloser, Paul Rostock, Oskar Schroeder, Karl Genzken, Karl Gebhardt, Kurt

Blome, Rudolf Brandt, Joachim Mrugowsky, Helmut Poppendick, Wolfram Sievers, Gerhard

Rose, Siegfried Ruff, Hans Wolfgang Romberg, Victor Brack, Hermann Becker-Freyseng,

George August Weltz, Konrad Schaefer, Waldemar Hoven, Wilhelm Beiglboeck, Adolf

Pokorny, Herta Oberhauser, and Fritz Fischer (Freyhofer, 2004). Then, the indictment was comprised of four charges that each defendant could be charged with:

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

(1) Crimes Against Peace, which were defined as planning,

preparation, initiation or waging of a war of aggression, or a

war in violation of international treaties and conventions

(2) War Crimes, defined as violations of the laws or customs of

war; and

(3) Crimes against Humanity, defined essentially as murder,

extermination, enslavement, and other inhuman acts committed

against civilian populations, and persecutions on political,

racial, or religious grounds. (Sebring, n.d., p. 2-3)

(4) Membership in Criminal Organizations – membership in an

organization declared to be criminal by the International

Military Tribunal in Case No. 1 (Freyhofer, 2004).

The Doctors’ Trial was held in the hopes that the tribunal would set precedent like the

Nuremberg Trial of Major War Criminals and prevent future medical war crimes and human experiments from being committed. The United States was compelled to create a Doctors’ Trial after John Thompson, an Allied scientific intelligence officer, along with his colleagues, discovered criminal medical evidence while researching German scientific achievements in the war. The accumulating evidence of inhumane practices and low-grade research under National

Socialism led John Thompson to coin the new concept of a ‘medical war crime.’1 Thompson’s revelations spurred further investigations, which culminated into the tribunal of United States of

1 John Thompson brought medical investigators together with war crimes authorities to lobby further investigations of medical experiments. Thompson’s efforts culminated into an inter-Allied meeting on medical war crimes to discuss policy on unethical experiments at Field Information Agency Technical (FIAT) offices on May 15, 1946. “Without Thompson’s initiative on ‘medical war crimes’ and the FIAT conference of May 1946 there would have been no Medical Trial” (Weindling, 2004, p. 111/125).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

America v. Karl Brandt, et al. (Weindling, 2004). The backbone of the trial consisted of incriminating documentary evidence and testimonies from victims of the human experiments

(Freyhofer, 2004).

The trial emphasized the importance of medicine’s role in the efforts of Nazi genocide plans to exterminate ‘racial degenerates.’ For instance, Nazi medicine involved human experiments, sterilization, and the euthanasia of ‘racial degenerates.’ Telford Taylor believed this trial, “remained above all a murder and war crimes trial” (Weindling, 2004, p. 169). For instance, to Taylor, murder and human experiments went hand in hand. However, it would turn out that a trial on race, ethics, genocide, and pseudo-science human experiments would be far more complicated than prosecutors anticipated (Weindling, 2004).

Medical Experiments

The Nazis implemented a multitude of various experiments on humans under the name of medicine and research. These medical experiments were carried out on concentration camp inmates and other involuntary subjects. Judge Harold Sebring highlights some of the medical experiments that the Nazis conducted in his personal judicial papers.

High Altitude Experiments

Dachau Concentration Camp provided non-German national inmates for the high altitude experiments in 1942. These experiments placed subjects in low-pressure chambers wherein experimenters could vary the air pressure rapidly thereby duplicating the atmospheric condition that an aviator could encounter when falling great distances through space. Head of these experiments, Dr. Sigmund Rascher, expressed his regret and dismay in a letter to Himmler that he was unable to use human subjects because no one would volunteer to be a part of these highly dangerous tests. Dr. Rascher knew that the chance of humans surviving the tests were slim but

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 believed the experiments were necessary anyways and consequently asked Himmler to put human subjects at his disposal. Himmler wrote back to Dr. Rascher’s letter replying, “prisoners will, of course, gladly be made available for the high flight researches” (Sebring, n.d., p. 13).

Himmler also ordered that a prisoner’s sentence, excluding the Polish and Russian inmates, should be “pardoned” to life imprisonment in a concentration camp if the human subject is brought back to life after enduring the experiment.

Freezing Experiments

Freezing experiments were conducted to ascertain the most effective way to re-warm German aviators who were forced to parachute into the North Sea. These experiments, tested on involuntary inmates from Dachau concentration camp, forced the subjects to be frozen by a tank of iced water for 3 hours at a time or to remain outside in freezing weather without clothing for 9 to 14 hours. The researchers then attempted to re-warm the men by various means such as using women prisoners from Ravensbruck Concentration Camp or hot baths. One report of the ice water experiments stated, “These cases ended fatally, without any successful results from resuscitation efforts” (Sebring, n.d., p. 17).

Malaria Experiments

Malaria experiments were performed on over 1,200 inmates to research the immunization and treatment of malaria. Healthy prisoners were infected by mosquitoes or injected with the disease taken from mosquitoes’ glands. Then, researchers administered various drugs such as pyramidon and neosalvarsan on the subjects in which many of them died from the excessive doses. Overall, evidence suggests that 30 deaths were caused directly from being infected with malaria and 300 to 400 died from later complications.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Mustard Gas Experiments

During the entirety of the war, mustard gas experiments were allegedly held to find an effective treatment for the burns caused by mustard gas. Victims of these experiments were deliberately wounded in which experimenters then forcibly infected the wounds of the subjects with mustard gas in a variety of ways such as inhaling the gas, being injected with the gas, or internally taking the gas by a liquid form.

Ravensbruck Experiments

The concentration camp for women, Ravensbruck, conducted a variety of experiments on its female prisoners. These experiments included bone, muscle and nerve regeneration, bone transplantation, and experiments with sulfanilamide and other drugs. In one set of tests, battlefield-wound infections were simulated by making incisions on the legs of inmates and forcefully infecting the wounds with fragments of wood shavings and ground glass that hosted bacterial cultures. Some of the women’s wounds were treated with sulfanilamide while others were not so that researchers could compare their reactions to the severe infections. Another set of experiments transplanted portions of limbs from one subject to another.

Sterilization Experiments

Sterilization experiments were carried out in several concentration camps, most notably,

Auschwitz and Ravensbruck. These medical experiments symbolized the heart of Nazi ideology as these experiments were conducted with the end goal of exterminating Jews, Poles, and

Russians, all considered by the Nazis to be inferior races. Experimenters wanted to find an inexpensive, unobtrusive, and rapid method to implement their plans of genocide. Sterilization was a preferred method because it allowed the Nazis to have a labor force without the risk of the labor force reproducing. Some methods attempted comprised of medicinal sterilization by the

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 use of drugs and x-rays. The Nazis loved to disguise their murderous intent with euphemisms and illusions. With the sterilization experiments, the Nazis planned to deceive concentration camp prisoners by making them think they were legitimately being x-rayed when in actuality, the

Nazis were sterilizing them.

Typhus Experiment

The research of typhus was implemented so that researchers could investigate the value and usefulness of various vaccines. Control and experimental groups composed of concentration camp inmates were all infected with typhus. The researchers then used these groups to compare the effectiveness of the various vaccines. Hundreds died as a result of these experiments.

Poison Experiments

The victims of Nazi poison experiments were Russian prisoners of war. Nazi doctors secretly administered poison to the prisoners’ food. While the prisoners ate the food, the Nazi doctors covertly watched and recorded the prisoners’ physical reactions to the poison. The Nazis killed those that survived the poisoning so that the doctors could perform autopsies on the subjects’ deceased bodies. Other experiments included prisoners getting shot in the thigh with poison bullets so that Nazi scientists could record the wounded prisoners’ physical reactions to the poisoned bullets.

Jewish Skeleton Collection

Reich Business Manager of the Ahnenerbe Society submitted to Himmler a report requesting the skulls of Jewish-Bolshevik Commissars for the purpose of scientific examination and documentation. 115 persons were killed for this project by phenol injections or gas chambers and their corpses sent to the Institute of the Reich University of Strassbourg. (Sebring, n.d., p. 12-38)

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

These experiments, and the many more not described, illustrate the complete disregard the Nazis had for human life. None of the human subjects the Nazis experimented on gave informed and voluntary consent in which all of the experimentations proved to be harmful, tortuous, and/or fatal. The sterilization experiments especially illustrated the Nazis debased belief of the extermination of “inferior races.” For instance, the human subjects of these sterilization experiments were neither volunteers nor criminals; the only “crime” they were criminally guilty of was being viewed as “inferior.” Without evidence of these medical experiments, the tribunal would not have been possible. The evidence consisted of memorandums, photos, experimental protocols, official and private letters, scientific reports, affidavits, and most notably, eyewitness accounts (Freyhofer, 2004; Sebring, n.d.). Judge Harold

Sebring (n.d.) writes how all the experiments “followed the same general pattern of callousness and indifference to the rights and safety of the experimental subjects” (p. 11). The epitome of

Count Two: War Crimes and Count Three: Crimes against Humanity is displayed through the experiments described above and further reviewed below.

Count Two: War Crimes

The experiments described above and the ones not mentioned were listed as war crimes under charge two. Additionally, some of the defendants were charged with medical atrocities not of an experimental nature. The victims of these war crimes encompassed civilians living in Nazi occupied territories as well as civilians and soldiers from nations that Nazi Germany were at war with at the time. All of the victims experimented on did not give voluntary and informed consent and were subjected to various brutalities and cruelties with many experiments resulting in death

(Freyhofer, 2004).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Count Three: Crimes Against Humanity

The prosecution charged defendants with crimes against humanity for the medical experiments performed “upon German civilians and nationals of other countries” (Freyhofer, 2004, p. 58).

While Count Two: War Crimes and Count Three: Crimes Against Humanity seem similar, there is an essential difference between the two charges. A main difference that separates the two counts is the context under which the crimes take place. For instance, crimes against humanity refers to atrocities committed against any civilian population, especially against individuals who belong to distinct racial, political, or religious groups. Meanwhile, war crimes refer to barbarities committed against prisoners of war and civilians from occupied territories. Most importantly, one should note that all defendants on the docket were charged with Count Two: War Crimes and Count Three: Crimes Against Humanity (Freyhofer, 2004, p. 75).

The Defense Strategy

In the defendants’ unwavering conviction, the defense tried to prove that:

1) No universal standards of human research ethics existed when they performed

these experiments.

2) They had acted in accordance with existing law.

3) The use of prison inmates as research subjects was a generally accepted

practice pioneered and still practiced in the penitentiaries of the accusing

nation, the United States.

4) The tortuous conditions, under which the medical experiments were

performed, were primarily the effect the horrendously destructive war had on

nearly everybody who was touched by it, especially in Germany. (Freyhofer,

2004)

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Two of the most significant issues raised by defendants concerning the tribunal was the use of retroactive law and victor’s justice. Retroactive law “violated the legal principal of nullem crimen sine lege (no law, no crime), recognized by all “civilized nations”” (Freyhofer, 2004, p.

90). The defendants accused the United States of charging them with crimes that were not considered crimes at the time and place when the actions were performed. When shown the facts and evidence proving their actus reus, the defendants did not deny it but they did deny all culpability and questioned the prosecution’s legal qualifications for charging them in the first place. Since the victors were putting the defendants on trial, the defendants could do nothing about it, so, the defendants rebutted the charges by refusing to take responsibility for the medical experiments due to their belief that their work was of scientific significance (Weindling, 2004).

When it came to determining the defendants’ culpability, most defendants cast responsibility on their dead superiors and denied blameworthiness due to their claims of general ignorance over whether or not the prisoners were volunteers. Overall, the defense believed that the prosecution

“fundamentally misunderstood the nature of the experiments” (Weindling, 2004, p. 201).

Next, the defense viewed the tribunal as a way for the victors, the United States, to exact revenge on Germany, their losing counterpart. The only reason why this trial was able to occur was because the Allies won the war and had the resources to conduct a trial. The defendants were highly educated and were affronted that the Allies would even think of charging them. There was a sense of indignation against the hypocrisy of the United States due to the United States own research on prison subjects. However, the United States touted their moral high ground by alleging that they had the consent of their prisoners and how no one was subjected to experiments that were tortuous or fatal like the Nazis’ experiments (Freyhofer, 2004). To the

Nazis on the docket, human experiments were a necessary part of research in which the

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 defendants kept firm in their belief that the experiments were legal and customary (Freyhofer,

2004).

The Prosecution Strategy

The United States’ main approach to this tribunal was to use a documents-based strategy to prove that individuals were experimented on without voluntary and informed consent. Similar to the Nuremberg Trial of Major War Criminals, the prosecution wanted the Nuremberg Medical

Trial to be a trial by document. As Weindling (2004) states, “The Americans understood that documents were authentic, whereas testimony could be fabricated, especially when whole groups conspired to argue that what had gone on was innocuous” (p. 160). These documents included official and private letters, scientific reports, photos, and affidavits that connected the defendants to the crimes charged in Counts Two and Three (Freyofer, 2004). The blueprint for the

Nuremberg Medical Trial focused on how Nazi medicine was pseudo-science and how none of the victims from the medical experiments gave informed and voluntary consent. Prosecution lawyer McHaney reminded the public of the true, simplistic nature of the tribunal, which was the fact that the defendants were on trial for the crime of murder (Weindling, 2004). Prosecution accumulated evidence proving that the victims of Nazi human experiments did not consent to being a part of the experiments. Therefore, what was on trial was the Nazi’s inhumane, debased form of torture, not legitimate scientific experiments.

The prosecution did their best to rebut the criticisms of retroactive law and victor’s justice. Prosecutors pointed out that because of the weight of Count Two: War Crimes and Count

Three: Crimes Against Humanity, the defendants had no authority to dismiss their culpability for the murder and mistreatment of civilians and prisoners of war under the Nazi regime. The Hague

Rules of Land Warfare of 1907 and the Geneva Convention of 1929, which constituted the core

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 of the London Agreement of 1945 (see Appendices B and C for provisions), already detailed these type of crimes under existing international law in which “the law was very clear and not retroactive” (Freyhofer, 2004, p. 46). The defendants’ claim of “not guilty” had no weight as the prosecution team presented an impressive amount of evidence against the defendants. The prosecution went so far in their evidence that they threatened and at times exposed the limit of the law due to the overwhelming discoveries of Nazi atrocities bringing one to question, how could any punishment fit the crimes of the Nazis?

Verdicts

The verdicts of the defendants were announced on August 20, 1947. All of the judges insisted on firm evidence and weighed the evidence for guilt against the standard of “proof beyond a reasonable doubt.” The rules of procedure for this judicial principle meant that the prosecutors had the burden of proof, which required them to show evidence of a defendant’s guilt in every element of the crime charged (Samaha, 2016, p. 47). The judges then had the responsibility of determining the defendants’ individual guilt in which they were careful to “cite extracts from documents and testimony as the basis for their verdicts” (Weindling, 2004, p.298).

Freyhofer (2004) summarizes the verdicts as he writes, “Of the fifteen who were found guilty of war crimes and crimes against humanity, seven were sentenced to death by hanging” and “all seven were members of the SS” (p. 85). Seven others were given a life sentence while two were given a minimum sentence in prison. Then, another seven defendants were acquitted. The seven defendants who were condemned to death appealed their sentence to Military Governor of the

American Zone, Lucius Clay, who turned all of them down. On June 2, 1948, Karl Brandt, Karl

Gebhardt, Joachim Mrugowky, Victor Brak, Wolfram Sievers, Rudolf Brandt, and Waldemar

Hoven were executed by hanging in Bavaria’s Landsberg Prison (Weindling, 2004).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Discussion

The evidence of the human experiments gathered by pre-trial investigators warranted a trial. During the tribunal, the prosecution accumulated and presented evidence of the Nazi medical experiments to the judges driving home their argument that these medical experiments were pseudoscience and especially violated human rights. The human subjects of these experiments did not give informed and voluntary consent and were subject to various forms of torture and in many cases, death, leading prosecutors to reiterate that the tribunal was ultimately a murder trial. The defense voiced their arguments of retroactive law and victor’s justice leading historians to question the fairness of the trial as well. However, due to the serious nature of the crimes, justice needed to be distributed and a universal consciousness needed to be established.

United States of America v. Karl Brandt, et al. had several procedural shortcomings that made the trial unfair but because the tribunal was morally right and had the goals of pursuing justice and leaving a legacy, the need for a trial outweighed the criticisms of the trial.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Literature Review Creation and Function of Law

To gain a better understanding of how the trial was conducted and how the trial was just, the creation and function of law is examined. According to Lon Fuller, a legal philosopher and advocate of natural law, there are eight ways to fail to make law and if a legal system fails totally in one or more of these eight ways, then it should not even be considered a legal system at all

(see Appendix D). Two of Fuller’s eight ways play a large part in notice arguments as his directions include the abuse of retroactive law and failure to make laws known to the public or at least the affected party (Fuller, 1964, p. 93). An essential part of due process is notice and the defendants argued that they were not given advance warning since they were being charged for crimes after the fact. Moreover, Count Two: War Crimes and Count Three: Crimes against

Humanity were considered retroactive by the defense as the defense argued that no universal standards of medical ethics existed at the time they performed their experiments and because of this, they did not violate domestic law or any law. Therefore, the defendants charged that the creation and function of law by the Allies was not fair for they were not given notice that the medical experiments they were researching and conducting at the time were going to be defined as illegal and subject to charges. The prosecution contended that because of the Hague Rules of

Land Warfare of 1907 and the Geneva Convention of 1929 there was notice. However, this notice only covered prisoners of war, it did not cover civilian prisoners, making Count Three:

Crimes against Humanity especially retroactive. The defendants argued that there were no laws in place, at the time, that dealt with how a country should treat its own people. Fuller rebuts the defense’s whole argument by stating that the Nazi legal system failed totally in his eight ways and therefore the entire regime should not be recognized in the first place by international war courts (Fuller, 1964).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Post-World War II, the Allies had the power and authority to pronounce law internationally in which group expectations changed. The Allies, with their power over the defeated nation of Germany, chose to uphold the rule of the law and due process rather than summarily execute Nazi war criminals (Ehrenfreund, 2007). By creating a trial, the United States set precedent by giving each defendant civil liberties while also holding each defendant accountable against the law, no matter his or her position. An aim of the Nuremberg Medical

Trial was to educate the world about proper medical research procedures with emphasis on the need of getting voluntary consent as well as informed consent so that individuals would know all the risks involved before participating. With this educational function of law, the United States hoped to deter countries from committing medical war crimes and crimes against humanity in the future as well as hold them accountable in case similar crimes are committed in the future.

Robert H. Jackson, Chief Prosecutor of the Nuremberg Trial of Major War Criminals, understood how barbaric the Nazi crimes were and emphasized the need for the Nazis to be brought to justice before the world. This insight from the Nuremberg Trial of Major War

Criminals set precedent for United States of America v. Karl Brandt, et al. For instance, the pre- trial discoveries of the Nazi medical experiments were so overwhelming and barbaric that the

Allied investigators strongly supported the creation of a tribunal to hold the Nazi medical doctors and administrators responsible. Furthermore, Henry Stimson, Secretary of War, believed that the

Nuremberg Trials would also establish a full record of the Nazi atrocities and institute America as a principal moral leader (Ehrenfreund, 2007, p. 9). Due to the memory of the Nuremberg Trial of Major War Criminals and subsequent Nuremberg Trials, the Allies created a hope and expectation that any perpetrator, regardless of standing, could be tried (Douglas, 2001).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Natural Law Theory

The Nuremberg Medical Trial sheds light on the significance of natural law in civilized nations. Topalli (2015) goes in depth on the basis of natural law,

Natural law is a set of inherent rights, based on the nature and

existence of every man. Everyone has equal natural rights (such

the right to live and physical inviolability or personal freedom)

irrespective of gender and his age, his position in society, time,

place and order the state in which he lives. Such as natural law is

one universal right, applicable to all men and all times. Natural

rights are pre and on- state, and therefore inalienable right of

“permanent.” They differ from law and other legal norms,

historically variable, set by the state (positive law). (p. 87)

Natural law theory is founded on two main theses: “a. exist morality and justice principles, generally available and accessible to human reason; b. legal system or a norm cannot be considered legal if it is contrary to the morality and justice” (Topalli, 2015, p. 88). Freyhofer explains how civilized nations have endorsed natural law as far back as the Enlightenment. The

United States especially believed in fundamental rights and by nature, every individual has them.

Because statutory law has rested on natural law for centuries in all civilized nations, natural law does not constitute new law (Freyhofer, 2004). For example, torture and murder in most civilized societies is considered morally and legally wrong. The Nuremberg Medical Trial, in the most simplistic nature, was a murder trial. Therefore, the counts of crimes against humanity and war crimes should not be considered retroactive.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Lon Fuller believed Nazi law should not be recognized in international war courts in the first place because the Nazi system was inefficient and “lacked all procedural standards of justice and transparency” (Topalli, 2015, p. 93). Fuller’s natural law theory emphasizes a procedural morality of law in which he views morality (natural right) as a characteristic of law. Thus, natural law is procedural in character as it is founded on several principles that state, “these rules should be announced, to be clear and unambiguous, feasible and realizable and do not change frequently” (Topalli, 2015, p. 89). For example, the Nazi system was known for its terror and secret laws that most times were authorized by word of mouth, which Fuller argues, made it impossible for citizens to recognize the legal basis of the Third Reich. Consequently, the Nazi laws were morally unjust and violated procedural standards making the entirety of the Third

Reich’s legal system illegitimate.

To the Nazis, the human races being tortured and murdered were looked down upon as subhuman or inferior which is why most Nazis did not think they were violating any kind of law or ethics. Because of this twisted, debased ideology that the Nazis purported and in which their laws under the Third Reich were based on, natural law supersedes the Nazi legal system.

According to Fuller, the laws of the Nazi regime are not legal norms because they violate the fundamental rights of humans under natural law. These fundamental rights existed before the

Third Reich, during the Third Reich, today and forever.

Lord Coleridge also supports natural law as he sums up the importance of the intertwinement of morality and law when he states, “Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence” (Samaha, 2016, p. 193). Topalli notes that the complete separation of law and morality creates the opportunity for totalitarian regimes such as

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 the Third Reich to be formed (Topalli, 2015). This separation also created the opportunity for the

Third Reich to violate human rights as already seen through the Nazi medical experiments. Legal systems have a duty to secure justice and in this case, the combination of ethics and legalities demanded a trial. The notion of there not being a trial is unthinkable due to the massive violation of human rights and heinous medical experiments committed by the Nazis. Freyhofer (2004) states how the defense argued that at the time, the defendants did not violate existing law but prosecution countered this argument by declaring existing law is not limited to written statutory law but includes inalienable natural law as well (p. 58). The theory of natural law played a huge part in keeping the trial just and emphasized the importance of keeping the doctrine alive in order to protect the future of human rights.

Judge Harold L. Sebring’s Personal Papers Regarding the Nuremberg Medical Trial

The measurement of fairness and justice are best seen through the judges, specifically

Judge Harold Sebring, for it is a judge’s role to be impartial and carry out justice. Judge Harold

Sebring was a Florida Supreme Court Judge who upheld the ideals of honesty, integrity and public service, and was stated to be unfailing in his courtesy to lawyers, witnesses and defendants alike (Weindling, 2004). In Judge Harold L. Sebring’s Personal Papers Regarding the

Nuremberg Medical Trial, the public gets an intimate look into his thoughts and views of the tribunal as he shares his experience with the public. Throughout his personal notes, Judge Harold

Sebring intersperses his thoughts and opinions of the trial along with the basic facts of the trial.

Judge Harold Sebring notes how honored and privileged he felt to be designated by the President of the United States and Military Governor of Germany as a judge for this tribunal. Judge Harold

Sebring (n.d.) defends the tribunal’s fairness as he delves into how due process of law was upheld for every defendant. He and the other two judges did not take their duty as administers of

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 justice lightly. Weindling (2004) emphasizes the judges’ difficult role in determining guilt from innocence in which the judges fulfilled this role by upholding American ideals and values.

Moreover, Weindling (2004) affirms that, “The Medical Trial judges showed none of the blatant bias of judges at later trials, who disregarded prosecution evidence on genocide and Nazi atrocities” (p. 137).

In his personal papers, Judge Harold Sebring (n.d.) declares his thoughts on the question of whether or not the tribunal was fair when he writes,

when the final chapter of these trials was written, and the results of

these trials were finally judged by the historians of the future, it

could never be said that those who in the role of victor judged the

vanquished accorded to them any less opportunity to establish their

innocence then they, themselves, could or should have asked for

had the situation been precisely opposite, with the victors in the

seats of the vanquished and the vanquished in the seats of the

victors. (p. 8)

Judge Harold Sebring seemingly implies that the Nazis should be grateful for even being granted a trial instead of complaining about retroactive law and victor’s justice. Judge Harold Sebring

(n.d.) goes on to list the various privileges the defendants were given and states how the defense counsel were given great latitude in presenting evidence, “even to the point at times of allowing the presentation of evidence of but scant probative value” (p. 7). Judge Harold Sebring then describes some of the human experiments subjected on innocent concentration camp prisoners by the Nazis in his notes. In light of the heinous atrocities that the defendants committed, the trial could have easily been a show trial where all the defendants could have been sentenced to death.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Judge Harold Sebring (n.d.) is aware of the privileges accorded to the defendants noting that the privileges transcended ten-thousandfold any privileges that the Allies would have been given under a Nazi Court (p. 7).

Judge Sebring’s argument of how the trial is fair because the United States granted the defendants many privileges they did not deserve does not mean that the trial as a whole was fair.

The “I’m better than the other guy” argument does not meet the benchmark standard of fairness.

Germany, the enemy of the Allies, was on trial after a world war that the Allies won. In other words, victor’s justice is what allowed the Allies to put the Nazis on trial in which it could also be argued that Germany was viewed as guilty even before the tribunal began. For example, while a judge’s role is to be impartial, it is impossible to let one’s biases not color one’s judgement.

More important to note is that all of the judges on the bench were citizens of the United States.

Citizens that grew up with American ideals giving them a predisposition to let those ideas and values influence their opinions. Readers can sense Judge Harold Sebring’s disgust with the Nazi human experiments throughout his personal papers which leads one to question how much of his opinion did he let influence his judgement? Would a neutral judge have viewed the atrocities with such weight as his? Overall, Judge Harold Sebring seems adamant in his belief that the privileges granted to the defendants far outweighs any retroactive law or victor’s justice criticisms. To Judge Harold Sebring, the trial was fair enough given its circumstances.

While the structure of the trial may not have been fair in some aspects, no one can dispute the fact that Judge Harold Sebring pursued justice. According to Weindling (2004), Judge Harold

Sebring “dealt with all questions related to medical ethics” as he believed the doctors had the primary moral duty and responsibility to the public (p. 258). In this case, the doctors violated this trust between doctor and patient and at the trial, he took a keen interest in the experimental

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 procedures and the evidence that went along with it (Weindling, 2004). For example, in his notes, Judge Harold Sebring makes the distinction between Nazi medical research and ethical medical research by stating how Nazi medical research, especially in the sterilization experiments, revealed virtually nothing which civilized medicine could use. The Nazis were sterilizing and killing under the guise of research when in fact, it was already widely known that certain drugs that were administered were lethal. Additionally, Judge Harold Sebring believed that the “advances” and “medical methods” discovered by the medical experiments were only useful to criminals and no doubt useful to a criminal state. (Sebring, n.d.)

Judge Harold Sebring’s interest in medical ethics is prominent because he understands the immense importance of setting international medical standards and upholding the law to those ethical standards. Dr. David Frenkel supports the Nuremberg Medical Trial for he believes that the rules of medical ethics take precedence over domestic statutory law when the patient’s body and integrity are violated. For example, he explains that defendants cannot defend themselves if he or she violates world accepted rules of ethics by contending that their country’s domestic law permitted them to act otherwise. Overall, Frenkel suggests that laws should reflect medical ethics (Frenkel, 1979). Even though the defendants were tried by Count Two: War

Crimes and Count Three: Crimes against Humanity, there was a need to set international ethical medical standards which would stress the significance of voluntary and informed consent and its absolute necessity for medical research. By creating these set international medical rules, it makes the world aware and holds the law accountable to keep in light with medical ethics.

Judge Harold Sebring reflected on his judicial task of establishing individual responsibility at the trial by noting,

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

When I first sat as a judge, I looked at these shabby little men [the

defendants] sitting there looking just like the rest of us. Then the

prosecution began to put on its evidence. It was all so clear, so one

sided, I began to doubt the evidence. I thought it couldn’t be.

People don’t act like that in a civilised world. If they hadn’t

confessed their guilt on the stand, I don’t think I would have

believed it even after it was all over. (Weindling, 2004, p. 298)

It seems that Judge Harold Sebring at first gave the defendants the benefit of the doubt due to the extremeness of the charges but the defendants’ own admissions to the experiments and the evidence that corroborated it proved him wrong. In his personal judicial notes, Judge Harold

Sebring condemns Nazi research and medical experiments by stating how it was not only criminal but also a scientific failure. Judge Harold Sebring blames the defendants who were leaders of German medicine for failing their country and profession in which he found their guilt to be the deepest and most culpable. Judge Harold Sebring (n.d.) firmly believed it was the defendants’ responsibility to “keep the profession true to its tradition, and protect it from the ravaging inroads of Nazi pseudoscience” (p. 30).

The impact and importance of the Nuremberg Trials are portrayed through people like

Judge Harold Sebring who left Nuremberg with a passion for the subject to be taught and made aware to the public. Judge Harold Sebring donated his own collection of manuscripts, memorabilia, and photographs from his time as a judge on the Nuremberg Medical Trial to

Stetson University College of Law where he was a dean from 1955-1968. Weindling (2004) states, “The indelible impression of the Nuremberg revelations meant he later attached importance to making students aware of the horror of Nazi doctrine” (p. 137). It is important for

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 individuals to learn about these trials so that one can bear witness and make sure the atrocities and injustice of the Nazis will never be swept under the rug and forgotten. Soon there will be no survivors left to bear witness so it is up to current generations and future generation to bear witness and take on the responsibility of learning about the Holocaust and its trials. The threat of its memory being lost and belittled is why these trials are so important. Judge Harold Sebring understood the gravity of the crimes and the immense need for the charges and experiments not to be forgotten. By leaving a personal collection of materials for the law school, Judge Harold

Sebring opened the door for others to work through the past and keep history, and more importantly the memories of the victims, alive.

Measuring the Tribunal’s Justness and Fairness

A question that plagues the Nuremberg Trials is how just and how fair were the tribunals? To answer these questions on justness and fairness, one must first distinguish the difference between the two terms for they are often used interchangeably. The dictionary defines justice as rightfulness or lawfulness, as a claim or title, justness of ground or reason and the moral principle determining just conduct (Justice, 2017). Fairness, on the other hand, is defined as the state, condition, or quality of being free from bias (Fairness, 2017). An article on ethical decision expands on these definitions by explaining how justice correlates with morality and a standard of rightness while fairness refers to the ability to judge without bias (Velasquez, Andre,

Shanks, S.J., Meyer, 1990). The trial can never be considered completely “fair” but it can be considered “just” due to the moral significance of natural law.

To the Allies’ credit, the United States did implement safeguards to keep the trial as fair as possible. United States of America v. Karl Brandt, et al. had good substantial evidence to charge the defendants with and followed legal and ethical obligations. For instance, the

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 defendants were presumed to be innocent until prosecution was able to prove beyond a reasonable doubt that the defendants were guilty of committing the offense(s) charged.

Moreover, Judge Harold Sebring (n.d) states how, “every step was taken to accord the defendants due process of law” (p. 6) and goes on to list the various privileges the defendants were accorded.

Judge Harold Sebring explains how defendants were given the right to choose his or her own German counsel and at least thirty days prior to trial, defendants were each given copies of the indictment. Next, the defendants were furnished with various amenities such as food, lodging, transportation, office space, supplies, and clerical assistance throughout the progression of the trial. The right to call witnesses was given whenever possible and if not possible, commissioners were appointed to take the witnesses’ testimonies and report it back to the tribunal. Defense attorneys were able to cross-examine the witnesses of the Prosecution and, the defense attorney’s clients were given the right to testify under oath on their behalf as well as make personal statements not under oath (Sebring, n.d., p. 6-7). Most importantly, seven defendants were acquitted which can be argued as disproving the claim of victor’s justice. For instance, the prosecutors were unable to prove beyond a reasonable doubt that the defendants committed the offenses they were charged with. If this trial was a Kangaroo court, then all of the defendants would have been determined as guilty from the start with no substantial evidence to prove their guilt beyond a reasonable doubt and no one would have been acquitted.

However, just because the United States believed they treated the defendants better than how the defendants would have treated United States’ defendants if roles were reversed, does not mean that the United States met the benchmark of fairness to its fullest degree. Essentially, the tribunal was not neutral or fair for it was a military tribunal where the enemy was put on trial by

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 the victors. The defendants were not judged by their peers but by judges who were all from the

United States and all of whom could not speak German (Weindling, 2004). Also, try as they may, one cannot be completely impartial. For instance, the tribunal was based on American ideals which underlies implicit bias against the defendants. To make it fair, Freyhofer notes that the Allies should have included judges from neutral countries or included at least one German judge on the bench (Freyhofer, 2004). Furthermore, the criticisms of retroactive law and victor’s justice will undoubtedly haunt the Nuremberg Medical Trial for years to come because of its controversy and certain aspects of legitimacy.

The United States sought to form these subsequent Nuremberg Tribunals with the purpose to create an expressive and ideological version of international law where retribution would be exacted on Nazi criminals and the general public would be educated. The evidence discovered by Allied intelligence officers that implicated the defendants of inhumane medical experiments were so heinous that the United States felt morally obligated to not let the Nazis escape justice. Also, despite the tribunal’s lack of fairness, the Nuremberg Medical Trial did exceed in meting out justice. For example, the Nuremberg Medical Trial followed the higher power of natural law, which trumps retroactive law, and in which tyrannical governments such as the Third Reich could not dismiss. The United States gave a voice to the victims of these atrocities and held the defendants responsible for their participation in the Nazi medical experiments because that is what all courts strive for, justice for the victims and the creation of a tribunal itself created a setting for justice to be carried out and served.

The measurement of fairness and justice is thus simple once natural law theory and all the components of the trial come together. From a purely legal standpoint, the trial is not fair. Even though several defendants were acquitted, the tribunal was fundamentally victor’s justice due to

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 the biased set up of the tribunal. There can be no disputing that the trial could have had a different outcome if the defendants’ peers judged them or if a judge from a neutral country was on the bench. For example, the defendants’ peers or even a neutral judge would not have imposed the United States’ moral standard over Germany’s moral standard. However, despite the unfair aspects of the trial, United States of America v. Karl Brandt, et al. was in fact just, for creating a tribunal was the right thing to do, due to the natural law theory. The natural law theory is founded on the principle of protecting human rights, which the Nazi medical experiments did not do. Nazi medical experiments violated the rights of humans as they were forced to be experimented on like animals. Because of the extreme nature of the crimes committed under

Count Two: War Crimes and Count Three: Crimes against Humanity, there was no other option but to create United States of America v. Karl Brandt, et al. Elie Wiesel (1986) eloquently sums up the greater meaning of holding a trial when he explains,

We must take sides. Neutrality helps the oppressor, never the

victim. Silence encourages the tormentor, never the tormented.

Sometimes we must interfere. When human lives are endangered,

when human dignity is in jeopardy, national borders and

sensitivities become irrelevant. Wherever men and women are

persecuted because of their race, religion, or political views, that

place must - at that moment - become the center of the universe.

(para. 9)

It was the United States’ moral duty to hold a trial and make sure the crimes of the Nazis were brought to justice. Not having a trial would have validated the Nazis’ belief and legal system, thereby giving other tyrannical governments the assumption that their criminal actions would be

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 ignored as well. By having a trial, human rights such as freedom, liberty, and security were defended and safeguarded for the future.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Policy Implication

Policy Implication of the Nuremberg Code

United States of America v. Karl Brandt, et al. set precedent through its creation of the

Nuremberg Code which set universally applicable standards for experimentation on human beings (see Appendix E). The Nuremberg Code consisted of ten principles with the aim of ensuring human individuals the guarantee of certain safeguards, most notably, the requirement of informed and voluntary consent throughout the experiment (Freyhofer, 2004). Chief of Counsel for the Prosecution, Telford Taylor considered that, “the judges - and especially Judge Harold

Sebring with his ‘probing mind’ - were ‘primarily responsible for the famous ten principles’”

(Weindling, 2004, p. 258). More specifically, Taylor believed Judge Harold Sebring was the most intellectually able on the bench due to Judge Harold Sebring’s active interest in judicial ethics and in the responsibility of doctors to the public. It was Judge Harold Sebring’s task to deal with the Nazi medical experiments when delivering judgement and he took upon himself the responsibility of drawing together expert opinions to formulate the Nuremberg Code.

(Weindling, 2004). For example, Judge Harold Sebring’s main interest was “the broader ethical outcome of the trial” (Weindling, 2004, p. 288). His and the other experts’ initiative in formulating the Nuremberg Code set precedent because now there is a guide, a guide of set protocols and clarifications about experimental procedures. The Nuremberg Code is preventative in nature as it was formulated in the hopes that similar atrocities would never happen again and if they were to happen, there would be set regulatory principles already in place to follow

(Weindling, 2004).

The policy implication through the Nuremberg Code illustrates the impact that the

Nuremberg Medical Trial has left on international law. For instance, the lasting legacy to come

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 out of the Nuremberg Medical Trial was the fruition of the Nuremberg Code which left a legal and moral precedent for nations to follow. The Nuremberg Code subsequently promoted the

World Medical Association, World Health Organization, and the Council for International

Organizations of Medical Sciences all of which amplified the Nuremberg Code’s call for ethical research and the protection of human subjects and their rights. Fifty years after Nuremberg,

Evelyne Shuster states that despite the Nuremberg Code not being adopted as law in its entirety or as ethics by any major medical association, it is nonetheless a leading influence on global human-rights law and medical ethics. Shuster believes the Nuremberg Code “changed forever the way both physicians and the public view the proper conduct of medical research on human subjects” (Shuster, 1997). For example, now there are regulations set by the Institutional Review

Board in America and Research Ethic Committees in Germany concerning research on human subjects. These ethical committees have the aim of protecting potential research participants’ rights and welfare. Overall, the Nuremberg Code left a lasting legacy on international human rights and law as well as history itself.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Conclusion

By procedural standards, United States of America v. Karl Brandt, et al. was not legally fair but it was morally right and hence, just, as the defendants were held accountable for their actions. The importance of having a trial offset the unfair aspects for the tribunal also set precedent by advancing international human rights and medical ethics. From reviewing the tribunal, the human experiments performed by the Nazis infringed on every human right and wholly met the charges of Count Two: War Crimes and Count Three: Crimes against Humanity.

The defendants’ claim of retroactive law in their defense strategy was rebutted by natural law theory, which held that fundamental human rights have existed for centuries and will always exist. Therefore, the United States did not make up new laws to find the defendants guilty; the laws against torture and murder already existed despite the Third Reich’s dismissal of them at the time. Then, the defense’s criticism of victor’s justice did support the notion that the trial was unfair by purely procedural standards. However, prosecution held fast in their convictions as they emphasized the Nazis’ disregard for human life through the medical experiments.

Additionally, prosecution found the research to be pseudoscience and kept the simplistic nature of the trial known, that being, the trial was a murder trial in which most of the defendants were found guilty.

The creation and function of law with the additional layer of natural law theory further supported the idea that the tribunal was just, important, and necessary. Likewise, Judge Harold

L. Sebring’s Personal Papers Regarding the Nuremberg Medical Trial added immense insight into the experiments and overall conduct of the tribunal. From his personal papers, readers find that his arguments for the fairness of the tribunal are well intended but flawed since the tribunal can never be viewed as impartial with the way it was set up with the victor’s in charge. However,

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 through his notes, readers find the moral obligation of having a trial far outweighed any unfair characteristics of the trial. Because of this tribunal, a universal consciousness was established.

United States of America v. Karl Brandt et al. set precedent and left a lasting legacy through its creation of the Nuremberg Code which created ten principles to protect human rights universally and ensure that voluntary and informed consent is always required in medical experiments.

This nine month long trial pursued justice as prosecution gave a voice to the victims of the Nazi medical experiments. Because of the enormity of the trial, research will always be plentiful. With this particular trial and how it was deemed unfair by procedural standards, future research can look into alternatives to a trial that would meet the benchmark of fairness.

Researching this trial keeps the memories of the atrocities alive and more importantly, the memories of the victims are remembered. United States of America v. Karl Brandt et al. was a fundamentally didactic trial that sought not only justice but also a lasting legacy.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

References

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Control Council Law No. 10. Lillian Goldman Law Library. Retrieved from

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Douglas, L. (2001). The memory of judgment: making law and history in the trials of the

Holocaust. New Haven, CT: Yale University Press.

Ehrenfreund, N. (2007). The Nuremberg legacy: how the Nazi war crimes trials changed the

course of history. New York, NY: Palgrave Macmillan.

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Freyhofer, H. H. (2004). The Nuremberg medical trial: the Holocaust and the origin of the

Nuremberg Medical Code. New York, NY: P. Lang.

International Committee of the Red Cross. (1907). Convention (IV) respecting the Laws and

Customs of War on Land and its annex: Regulations concerning the Laws and Customs

of War on Land. The Hague, 18 October 1907. Retrieved from https://ihl-

databases.icrc.org/ihl/INTRO/195 Accessed on [4/5/17]

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to the treatment of prisoners of war. Retrieved from

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Sebring, Harold L. (n.d.). Dean Harold L. Sebring's personal papers regarding the Nuremberg

Medical Trial. Harold L. Sebring Collection, Dolly and Homer Hand Law Library

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The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Appendix A

Control Council Law No. 10

Article I.

The Moscow Declaration of 30 October 1943 "Concerning Responsibility of Hitlerites for

Committed Atrocities" and the London Agreement of 8 August 1945 "Concerning Prosecution and Punishment of Major War Criminals of European Axis" are made integral parts of this Law.

Adherence to the provisions of the London Agreement by any of the United Nations, as provided for in Article V of that Agreement, shall not entitle such Nation to participate or interfere in the operation of this Law within the Control Council area of authority in Germany.

Article III

1. Each occupying authority, within its Zone of Occupation,

(a) shall have the right to cause persons within such Zone suspected of having committed a crime, including those charged with crime by one of the United Nations, to be arrested and shall take under control the property, real and personal, owned or controlled by the said persons, pending decisions as to its eventual disposition.

(b) shall report to the Legal Directorate the name of all suspected criminals, the reasons for and the places of their detention, if they are detained, and the names and location of witnesses.

(d) shall have the right to cause all persons so arrested and charged, and not delivered to another authority as herein provided, or released, to be brought to trial before an appropriate tribunal.

Such tribunal may, in the case of crimes committed by persons of German citizenship or

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017 nationality against other persons of German citizenship or nationality, or stateless persons, be a

German Court, if authorized by the occupying authorities.

2. The tribunal by which persons charged with offenses hereunder shall be tried and the rules and procedure thereof shall be determined or designated by each Zone Commander for his respective

Zone. Nothing herein is intended to, or shall impair or limit the Jurisdiction or power of any court or tribunal now or hereafter established in any Zone by the Commander thereof, or of the

International Military Tribunal established by the London Agreement of 8 August 1945.

3. Persons wanted for trial by an International Military Tribunal will not be tried without the consent of the Committee of Chief Prosecutors. Each Zone Commander will deliver such persons who are within his Zone to that committee upon request and will make witnesses and evidence available to it.

4. Persons known to be wanted for trial in another Zone or outside Germany will not be tried prior to decision under Article IV unless the fact of their apprehension has been reported in accordance with Section 1 (b) of this Article, three months have elapsed thereafter, and no request for delivery of the type contemplated by Article IV has been received by the Zone

Commander concerned.

5. The execution of death sentences may be deferred by not to exceed one month after the sentence has become final when the Zone Commander concerned has reason to believe that the testimony of those under sentence would be of value in the investigation and trial of crimes within or without his zone.

6. Each Zone Commander will cause such effect to be given to the judgments Of courts of competent jurisdiction, with respect to the property taken under his control pursuant thereto, as he may deem proper in the interest of Justice. (The Avalon Project at Yale Law School, 1945).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Appendix B

Hague Rules of Land Warfare of 1907

The Hague Conventions were a series of international treaties that issued from international conferences held at The Hague in the Netherlands in 1899 and 1907. The Hague Rules of Land

Warfare of 1907 covered and define war crimes under internal law in Articles 46, 50, 52, and 56.

Art. 46. Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.

Art. 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

Art. 52. Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country. Such requisitions and services shall only be demanded on the authority of the commander in the locality occupied.

Contributions in kind shall as far is possible be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible.

Art. 56. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.

All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings. (International Committee of the Red Cross, 1907).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Appendix C

Third Geneva Convention

The Geneva Convention of 27 July 1929 on the treatment of prisoners of war comprises 97 articles. It lays down the general principle whereby captives must at all times be treated humanely. In particular, they must be protected from acts of violence, insults and public curiosity; in addition, it is forbidden to carry out reprisals against them.

The convention gives detailed rules of the following:

 the conditions in which prisoners should be captured and evacuated;

 the organization of camps;

 food and clothing for prisoners;

 hygiene;

 religious practice;

 mental and physical recreation;

 discipline inside camps;

 prisoners' financial resources;

 prison labour;

 prisoners' mail, including parcels;

 penal sanctions concerning prisoners of war, and legal proceedings;

 the repatriation of prisoners of war (International Committee of the Red Cross, 1929).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Appendix D

Eight Ways to Fail to Make Law

(1) Failure to achieve rules at all, so that every issue must be decided on an ad hoc basis

(2) A failure to publicize, or at least to make available to the affected party, the rules he is

expected to observe

(3) The abuse of retroactive legislation

(4) A failure to make rules understandable

(5) The enactment of contradictory rules

(6) Rules that require conduct beyond the powers of the affected party

(7) Introducing such frequent changes in the rules that the subject cannot orient his action by

them

(8) A failure of congruence between the rules as announced and their actual administration

(Fuller, 1964, p. 93).

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

Appendix E

The Nuremberg Code

1. The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

The Nuremberg Medical Trial – How just? How fair? How important? Hossler, K. 2017

5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject (Freyhofer, 2004, p. 103-104).