Michael R. Marrus - The Nuremberg Doctors' Trial in Historical Context - Bulletin of the History of Medicine 73:1

 

The Nuremberg Doctors' Trial in Historical Context

Michael R. Marrus


In this paper I follow a course that I often warn my students against: I criticize the proceedings of the Doctors' Trial more for what did not happen, than for what did. I want to argue that the Doctors' Trial--the first of the "subsequent Nuremberg proceedings," the twelve trials held under U.S. auspices in the wake of the International Military Tribunal (IMT)--missed an important opportunity to define the principal crimes of German physicians during the Third Reich, to identify the major perpetrators, to put them in a wider intellectual and institutional context, and to sketch an explanation of their crimes. A suggestion drawn from this observation is that the focus of the trial contributed to the evasion of medical responsibility noted by so many commentators in recent years. My justification for this approach, fraught as it is with the temptations of anachronism, is that those responsible for the trial themselves defined the standards by which the proceedings can be assessed.

These standards, it should be said, were admirably high and were solemnly declared. One thinks first, perhaps, of U.S. Chief Prosecutor Justice Robert Jackson's opening address at the Trial of the Major German War Criminals, insisting on the gravity of Nazi wrongdoing: "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated." 1 "The groundwork of our case," Jackson told President Harry Truman, [End Page 106]

must be factually authentic and constitute a well-documented history of what we are convinced was a grand, concerted pattern to incite and commit the aggressions and barbarities which have shocked the world. Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. 2

Jackson, of course, was not alone in his reference to the historical record. The British chief prosecutor, Sir Hartley Shawcross, made a related point in his own opening statement to the Nuremberg court: "This Tribunal will provide a contemporary touchstone and an authoritative and impartial record to which future historians may turn for truth and future politicians for warning." 3

Famous for its graphic presentation of at least some of the most heinous medical atrocities of the Third Reich, the Doctors' Trial revealed the depths to which some physicians sank, and the wide-ranging nature of their criminality--"the whole complex of stomach-churning 'medical' and 'scientific' experiments," as historian Michael Burleigh notes. 4 In that sense (and at the end of the day, this may perhaps be the most important achievement of the prosecution), the trial succeeded. My quarrel is rather with the proceedings' inattentiveness to historical context, something that Brigadier General Telford Taylor, the American Chief Counsel, declared as his objective at the beginning of the Doctors' Trial: "It is our deep obligation to all peoples of the world to show why and how these things happened. It is incumbent upon us to set forth with conspicuous clarity the ideas and motives which moved these defendants to treat their fellow men as less than beasts." 5 The Doctors' Trial was supposed to set the record straight--"to promote the interest of historical truth," as Taylor summed it up in his report to the Secretary of the Army in 1948. 6 Like the other dignitaries associated with the trial, Taylor set his sights high--in terms of motivation, ideology, and historical [End Page 107] explanation. With respect, and also with appreciation for what actually was accomplished, I want to indicate some ways in which the Doctors' Trial fell short.

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Assembled in December 1946, in the courtroom recently vacated by the International Military Tribunal, United States Military Tribunal I began to hear evidence against twenty-three somewhat bedraggled defendants--all but three of them physicians, and some of them distinguished researchers--"charged with murders, tortures, and other atrocities committed in the name of medical science," as Telford Taylor said. 7 According to the prosecution, the victims of these crimes numbered in the hundreds of thousands. The three-judge court, presided over by Walter Beals, chief justice of the Supreme Court of the State of Washington, heard evidence until July 1947. Listening to testimony in English and German, the court sat for 139 days, and received nearly fifteen hundred documents submitted by the prosecution and the defense. The English-language transcript of the proceedings runs to more than eleven thousand pages. The tribunal issued its judgment in August, finding sixteen of the defendants guilty, and sentencing seven of them to death by hanging.

Those who go to the judgment expecting a ringing statement of explanation and responsibility--a call for "historical truth"--will certainly be disappointed. Quite unlike the style and scope of the judgment of the IMT, the document issued by Judge Beals and his colleagues was rather terse and technical, mainly reviewing the evidence relating to particular defendants. The only memorable section was the so-called "Nuremberg Code," a list of ten "basic principles" that the court contended were universally agreed-to by "the protagonists of the practice of human experimentation." 8 In the cases presented to the court, the judges found, "these ten principles were much more frequently honored in their breach than in their observance." 9 The defendants were held to have acted "in complete disregard of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations." 10 Tucked into the passages dealing with individual defendants were occasional references to the [End Page 108] organization of health services in the Third Reich, obligations in the face of superior orders, and the fraudulent methodology of the criminal experiments. But in regard to a grand historic assessment of medicine in the Third Reich, a human dimension of the catastrophe, or even clues as to what went so very wrong in Nazi Germany, Judge Beals and his colleagues were practically silent. In what follows, I would like to discuss some reasons why this was so.

An important clue lies in the indictment against the twenty-three accused. Drafted for the first of the subsequent proceedings, this was an important policy-making document, "in many respects the prototype of [other indictments] that were to follow," Telford Taylor later reported. 11 Understandably, it was designed to pursue American war crimes policy--to punish important Nazi criminals, stigmatize the criminality of the Nazi regime, and contribute thereby to the democratization of Germany. Framed by the war crimes concepts of the London Charter (the 1945 document negotiated by the Americans, British, French, and Russians to deal with the major German war criminals) and Control Council Law number 10 (a four-power agreement on post-IMT war crimes proceedings), the indictment mentioned four counts: war crimes, crimes against humanity, participation in a "common design or conspiracy" to commit these crimes, and membership in the SS, an organization declared criminal in the judgment of the International Military Tribunal.

The cast of this indictment, setting medical crimes within a formal legal framework painstakingly negotiated to fit the very general priorities of the four major victorious powers, is a reminder of how the trial served other masters than the historical record alluded to by Jackson and Taylor. Notably, the counts against the accused focused exclusively on the wartime period, thereby skirting the delicate legal question, carefully considered in preparation for the IMT, of whether the victorious powers had jurisdiction over prewar Nazi crimes. Further, reflecting the prosecution strategy adopted before the IMT, the indictment portrayed the accused as members of a criminal conspiracy, something like a group of gangsters who planned and carried out a bank robbery, rather than as individuals who shared a common ideology or institutional culture. 12 Finally, while it did mention crimes against German civilians--who in fact constituted the overwhelming majority of victims of Nazi medical crimes--the indictment rather emphasized the non-German victims in countries at war with [End Page 109] Nazi Germany. In all of these respects, as we shall see, important legal and political priorities shaped the course of the trial and the presentation of evidence, ultimately narrowing and distorting the history of medical crimes in the Third Reich.

In addition to these high-level priorities, more mundane circumstances weakened the impact of the Doctors' Trial. Launched amid the ruins of postwar Germany and the mountains of rubble in the city of Nuremberg itself, the subsequent proceedings in general--and the Doctors' Trial, as the first of these, in particular--had a haphazard, improvised character. Under the overall direction of Telford Taylor, the Office of Chief Counsel for War Crimes (OCCWC) responsible for all twelve trials began with a staff of only twenty-five attorneys, hastily assembled in Nuremberg in mid-May 1946. 13 (The indictment of those accused in the physicians' case was completed in October and the trial began in December.) Preparation of the Doctors' Trial fell to one of six branches of the OCCWC, known as the SS Division, which had no special medical expertise and was rather preoccupied with the most highly Nazified of the accused--Oswald Pohl and the managers of the Economic-Administrative Main Office (WVHA) of the SS, the SS Race and Resettlement Main Office (RuSHA), and the mass killers of the Einsatzgruppen. As Christian Pross and others have noted, the Doctors' Trial seems to have been poorly prepared in various respects. Overworked and understaffed, the prosecution team included only one full-time medical consultant: Leo Alexander, a Viennese-born neurologist with the rank of major in the American army. Only later, toward the end of the trial, did they call upon the much better known Andrew Ivy, a recognized expert in the field of experimental physiology and vice-president of the University of Illinois, a man with no specialized knowledge of Germany or its medical culture. 14

Choosing whom to prosecute posed particular difficulties. The choice of defendants was supposed to depend upon a decision about the level of responsibility at which a "bottom line" should be drawn; in practice, it probably had as much to do with the size of the Nuremberg courtrooms, only two of which could hold up to twenty-four defendants. As Taylor later admitted, he and his colleagues were swamped with evidence, and had real difficulty digesting what had been gathered for them. One result [End Page 110] was that important perpetrators slipped through the Americans' net (the most notorious of whom was Josef Mengele, the "Angel of Death" of Auschwitz), while others were charged on the basis of insufficient evidence. Evidence of overly hasty prosecution abounds in the cases of the seven accused who were acquitted--the average number of acquittals in the subsequent proceedings being three. 15 The uncertain hand is certainly evident in the case of Hitler's personal physician Karl Brandt, a major architect of the "euthanasia" program, who was almost released before his indictment. Prominent practitioners of racial policy who went about their business undisturbed included such luminaries as Ernst Rüdin and Fritz Lenz, and Josef Mengele's Berlin supervisor, Otmar Freiherr von Verschuer. Werner Heyde, one of the most notorious medical perpetrators, was also unindicted, possibly because he was interned by the British in 1945. 16

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In keeping with the American understanding of German war crimes, the prosecutors portrayed the medical defendants as having been caught up in Nazism, a criminal, power-mad enterprise with a ruthlessly utilitarian philosophy. Alexander summed up his approach in the New England Journal of Medicine in 1949: "Science under dictatorship becomes subordinated to the guiding philosophy of the dictatorship." 17 At Nuremberg, the commitment to this explanation was heavily conditioned by the Allied understanding of what had gone wrong after the First World War. In 1918, it was recalled, masses of Germans had attributed their nation's catastrophe to the undermining of the German war effort by Jews and Communists at home, rather than to policies of their own government. Nuremberg--both the IMT and the subsequent proceedings--was intended to prevent a new Dolchstosslegende: the notion that Germany had been stabbed in the back by enemies at home such as Jews and Marxists, rather than defeated by her enemies abroad. "This case, and others which will be tried in this building," Telford Taylor told the court at the opening of the Doctors' Trial, "offer a signal opportunity to lay before the German people the true cause of their present misery"; that cause, he [End Page 111] continued, was the "insane and malignant doctrines" of the Third Reich. 18 To the American prosecutors, the essential task of the Doctors' Trial was to link the defendants' atrocious medical crimes to the wider Nazi enterprise. Taylor underscored this point in addressing the court: the defendants' crimes

were the inevitable result of the sinister doctrines which they espoused, and these same doctrines sealed the fate of Germany, shattered Europe, and left the world in ferment. Wherever those doctrines may emerge and prevail, the same terrible consequences will follow. That is why a bold and lucid consummation of these proceedings is of vital importance to all nations. That is why the United States has constituted this Tribunal. 19

A noble ambition, this strategy nevertheless shifted attention from the medical origins of the medical crimes. The prosecutors took pains, for example, to outline the organization of medical services of the Third Reich, placing before the court a complicated chart topped by Adolf Hitler himself--following the pattern used before the IMT in attempting to prove the criminality of Nazi organizations. The purpose here was threefold: to link the defendants to the core of the Nazi enterprise headed by the Führer; to show how ten of them were integrated into the SS, an organization previously deemed criminal by the IMT; and finally, to illustrate how these practitioners fit into a wider pattern of conspiracy, defined in the first count against the accused. The physicians' crimes, the prosecution claimed, "constituted a well-integrated criminal program in which the defendants planned and collaborated among themselves and with others." 20 What moved them to do so? "The motivating force for this conspiracy came from two sources," Taylor explained:

Himmler, as head of the SS, a most terrible machine of oppression with vast resources, could provide numberless victims for the experiments. By doing so, he enhanced the prestige of his organization and was able to give free rein to the Nazi racial theories of which he was a leading protagonist and to develop new techniques for the mass exterminations which were dear to his heart. The German military leaders, as the other main driving force, caught up the opportunity which Himmler presented them with and ruthlessly capitalized on Himmler's hideous overtures in an endeavor to strengthen their military machine. 21

So much for the place of medicine in the Third Reich. [End Page 112]

As it turned out, the prosecutors' arguments for a specific charge of conspiracy failed badly in the contest with the defense. Arguing legalistically, attorneys for the accused in the Doctors' Trial and two other trials in the subsequent proceedings contended that the American tribunals had no jurisdiction over such an offense, which the IMT judgment ruled had to be linked with "crimes against peace." Seven months into the trial, to the embarrassment of the prosecution, the various judges of several of the subsequent proceedings, meeting in joint session, agreed with this viewpoint, pointing out that such an offense was not mentioned in the Nuremberg Charter or Control Council Law no. 10. Thereby, the conspiracy count was dismissed. 22

Significantly narrowing the historical field of inquiry, the prosecution strategy deliberately avoided the medical and scientific background of the atrocities committed by Nazi physicians. In their eagerness to establish the link with Nazism, the prosecutors and the judges largely ignored the degree to which racist and eugenic thought had become well established, if not dominant, in medical thinking in Germany even before the Nazis' seizure of power. 23 True, there was no straight line leading directly from such ideologies to Nazi crimes. Historians now show us how variegated scientific thinking was in the 1920s and early 1930s, and how complicated the interactions among various factions and personalities during the Weimar and even Nazi periods. But virtually no one looking at this issue today would discount so totally the medical and ideological background to the atrocities that were the subject of the Doctors' Trial. As Michael Burleigh notes with reference to the so-called euthanasia campaign, "these policies did not materialize out of thin air in response to unforeseeable wartime circumstances; they were entertained long in advance, by people who were very conscious of past precedents and of what they were doing." 24

Similarly, the Nuremberg approach took no account of the special affinity between medical practitioners and Nazism, seeing Nazi physicians rather as supreme opportunists, bound together in the SS with a so-called Blutkitt (blood-cement)--as Alexander put it, "an age-old method used by criminal gangs everywhere: that of making suspects of disloyalty clear themselves by participating in a crime that would definitely and [End Page 113] irrevocably tie them to the organization." 25 Much more powerful and extensive in impact than the Blutkitt, however, was the attraction of many physicians to the Nazi enterprise, which lavished status and authority on the medical profession.

Under Nazism, physicians were encouraged to think of themselves as custodians of the health of the German Volk--with health often understood in racial and eugenic terms. National Socialism was "applied biology," said Fritz Lenz, one of the leading authorities on racial hygiene; 26 Hitler, he claimed, was the "doctor of the German people." 27 "Our starting point is not the individual," Joseph Goebbels told a Party rally in 1938: "we must have a healthy people in order to prevail in the world." 28 As Michael Kater has shown, physicians at the medical grassroots offered themselves with alacrity to the regime: "physicians became Nazified more thoroughly and much sooner than any other profession, and as Nazis they did more in service of the nefarious regime than any of their extraprofessional peers." 29 At the clinical and academic heights the story is much the same: high-ranking Nazi physicians did not come from the margins of German medicine, but often from the very pinnacle of the professional establishment. Henry Friedlander lists seventeen top medical experts involved in Nazi crimes, most of whom dealt directly or indirectly in forcible sterilization or the murderous euthanasia campaign; they include distinguished university chairs of various medical specialties, hospital chiefs, and other top medical administrators--part of a Who's Who of German medicine of the time. 30 "Contrary to the notion that Nazism somehow corrupted and distorted the temples of learning," Michael Burleigh and Wolfgang Wippermann note, ". . . one could argue that a corrupt and inherently distorted science lent Nazism a specifically 'academic' and 'scientific' character." 31 [End Page 114]

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Prosecution strategy not only distorted the origins of medical crimes, it also drew attention away from some of the most egregious wrongdoing by physicians during the Third Reich. Understandably, the Doctors' Trial focused on crimes against non-German victims of Nazi aggression, and observed other legal constraints agreed-to by representatives from the United States, Great Britain, France, and the Soviet Union in their preparation of the International Military Tribunal. For the Doctors' Trial, this meant an almost exclusive attention to the wartime period, and a focus on the ghastly concentration camp experiments as the principal instance of medical crimes. But it also entailed a downplaying of forcible sterilization and "medicalized killing"--the victimization of several hundred thousand people, mainly Germans, in which physicians were so heavily involved.

Although the indictment of the accused included crimes against German civilians, it did so only in reference to count 3, crimes against humanity. German civilians were alleged to have been victims of "medical experiments without the subjects' consent," and to have been murdered in unspecified ways, including "the so-called 'euthanasia' program of the German Reich." 32 Behind these references there was a good deal of politics and negotiation. In the general understanding of many American officials, war crimes trials were not being held to punish Germans for domestic atrocities. Military Governor General Lucius Clay, commander of the American military zone and responsible for the establishment of the subsequent proceedings, believed that "our mandate was to try those who had committed crimes against the United States, or our Allies, not against the German people." 33 Clay was not entirely right on this point, however. During the negotiations leading to the IMT, Jewish refugees and other anti-Nazi émigrés in the United States and Britain, fearing precisely this limitation, had urged the Allies to include in postwar trials the wrongs they had suffered. In response to their appeals, the charge of "Crimes against Humanity" was drafted for this very purpose. 34 Nervous about an overly broad scope of such crimes, however, one that might theoretically entrench upon American sovereignty, Justice Jackson insisted that they be limited to acts committed in connection with or in execution of the launching of aggressive war--to the Americans, the [End Page 115] heart of the case against Nazi Germany. 35 But since this qualifying language was omitted from the definition of crimes against humanity in Control Council Law no. 10, the matter was subject to interpretation and judicial decision.

This issue was thrashed out in several of the subsequent proceedings, and the judges decided differently in different cases. 36 In the Doctors' Trial, the prosecution seems to have decided to skirt the matter, probably feeling that there was more than enough evidence of crimes against non-Germans to obtain convictions. In practice, therefore, both the prosecutors and the judges preferred to direct attention away from crimes committed against German civilians. As a result, the trial suffered grievously as a chronicle of the medical crimes of the Third Reich.

Nowhere was this more obvious than with reference to forcible sterilization--a medical program instituted in 1934 for eugenic purposes that victimized about 1 percent of the entire German population, some four hundred thousand people in the Greater German Reich, most of them prior to the outbreak of the war in 1939. 37 Openly conducted, involving an elaborate apparatus of laws and procedures, genetic health courts and appeal tribunals, this was a huge undertaking for the German medical profession. During the first four years of application of the 1933 Sterilization Law more than fifty thousand people a year were victimized in this process. The circle of complicity became very wide. "Doctors competed to fulfill sterilization quotas," observes Robert Proctor; "sterilization research and engineering rapidly became one of the largest medical industries. Medical supply companies . . . made a substantial amount of money designing sterilization equipment. Medical students wrote at least 183 doctoral theses exploring the criteria, methods and consequences of sterilization." 38 The Doctors' Trial raised the issue of forcible sterilization, seeing it as one of "the scientific tools for the planning and practice of genocide," but only in relation to experiments committed against concentration camp inmates--non-Germans--in the wider context of wartime criminal experiments. 39 In this way the trial missed an opportunity to elucidate eugenic and racist policies and to link them with the [End Page 116] medical profession. A crime of extraordinary proportions was practically overlooked.

This was not the case with the euthanasia campaign, which occupied considerable time at the Doctors' Trial and for which there was a great mass of documents submitted in evidence. More than one hundred thousand people were killed in this cruel and inhuman process, which began with the murder of little children, expanded to include adults done to death in six killing centers in Germany, and developed further after 1941 to include inmates in various concentration camps throughout the expanded Reich. The victims were overwhelmingly German, although not exclusively so. 40 In documenting the extent of this killing and the mechanism by which it was carried out, the trial served the historical record well. But unfortunately, the context was less than satisfactory for an accurate view. The prosecution regularly drew attention to non-German victims, ignoring the powerful ideological thrust of the campaign and presenting Nazi euthanasia in simple utilitarian terms: removing "useless eaters" from a country fully mobilized for war (presented as "the principal rationale") and pursuing the struggle against Germany's enemies. "Euthanasia became merely a polite word for the systematic slaughter of Jews and many other categories of persons useless or unfriendly to the Nazi regime," was how Telford Taylor put it. 41

In issuing their judgment, the judges had little to add about the euthanasia campaign, simply accepting the prosecution's contentions, and turning to the matter in detail only in passages relating to specific defendants. Here too, an important chapter in the medical history of the Reich was overlooked. For the reasons I have explained, the judges took pains to emphasize that non-German nationals were among those killed. Responding to the claims of defendant Karl Brandt that there was a legal and even humanitarian basis for these killings, the judges were forthright, if chilling, in their language:

Whether or not a state may validly enact legislation which imposes euthanasia upon certain classes of its citizens is a question which does not enter into the issues. Assuming that it may do so, the Family of Nations is not obligated to give recognition to such legislation when it manifestly gives legality to plain murder and torture of defenseless and powerless human beings of other nations. 42 [End Page 117]

As to origins, there was practically no challenge to the prosecutors' view that the euthanasia killings were a simple product of Nazi aggression. And yet as Hans-Walter Schmuhl reminds us, euthanasia "was not a genuine National Socialist phenomenon"; rather, Nazism had simply taken up in the 1920s the most radical expression of racial-hygiene thinking. 43 The Doctors' Trial spared nothing in presenting the callousness, horror, and great extent of the euthanasia killing, but it offered only the crudest of explanations for what had occurred and made no links with eugenic thought and the medical culture of Germany or, as we shall see in a moment, the wider developed world.

The real emphasis in the Doctors' Trial was, of course, upon the ghastly medical experiments conducted in concentration camps--upon which the great bulk of the evidence against the accused was presented, and in response to which the judges issued the famous "Nuremberg Code." This is the principal reason the Doctors' Trial is remembered today. However valuable this attention, and I freely acknowledge its importance in the evolution of the doctrine of informed consent, it distorted the picture of the impact of medical crimes in several ways. One of these involves the numbers of victims. As we have seen, there were about four hundred thousand victims of forcible sterilization, and more than a hundred thousand were killed in the euthanasia campaign. No one knows how many were subjected to the Nazi medical experiments, but the victims almost certainly did not exceed several thousand--nowhere near the totals of those other crimes, and far fewer than the murdered tubercular Poles mentioned in the indictment, for example, about whom there was far less discussion at the trial. In its preoccupation with experiments, the Doctors' Trial obscured rather than clarified.

While the focus on experiments was useful in demonstrating the depravity of some German physicians, it deflected attention from the involvement of the medical profession as a whole in the Nazi enterprise. Unlike the case with forcible sterilization or euthanasia, only a relatively small number of physicians and others conducted the experiments, or even knew about them. That is why Andrew Ivy understood that there were no more than two hundred medical criminals--although "several hundred more were aware of what was going on." 44 The prosecution's view was that this "sinister assembly" of perpetrators, as Telford Taylor referred to them, 45 experimented in a manner that in fact served no [End Page 118] useful purpose and was both inefficient and unscientific. This is undoubtedly true for some of the experiments, yet it may not be so for others. But I would suggest that, in highlighting this aspect of the physicians' crimes as if it characterized the whole, the prosecutors may have assisted the postwar tendency of the profession to wrap itself in scientific credentials and to evade its social and ethical responsibilities.

Most of these experiments--exposure to extreme cold, high altitude, mustard gas, sulfanilamide, sea-water, or incendiary bombs; bone, muscle, and nerve regeneration and bone transplantation; and others--were understood as having been undertaken at the behest of the military. Why did the defendants conduct these experiments? The overly simple answer of the Doctors' Trial was that they did so to assist the military triumph of Germany: "These experiments," said the judges, "were the product of coordinated policy-making and planning at high governmental, military, and Nazi Party levels, conducted as an integral part of the total war effort." 46 This focus on the experiments drew attention away from the nonmilitary ideological and occupational motivations that subsequent historians have found so important in explaining the involvement of hundreds of physicians in the Nazi project.

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Flushed with victory, and with their domestic opinion running powerfully against the defeated German Reich, the Allies were hardly eager to see lawyers for accused Nazi war criminals make what were called tu quoque arguments--the defense response, in the face of accusations of grave breaches of the laws and customs of war, that "you did it too." Although this was explicitly precluded by the Nuremberg Charter, several defense counsel attempted to slip such arguments past the IMT judges; with the exception of one instance having to do with submarine warfare, such strategies were ruled out of order. In the Doctors' Trial, however, the indictment permitted greater attention to the conduct of the Allies because the defendants were accused of violating "general principles of criminal law as derived from the criminal laws of all civilized nations." 47 As a result, the judges permitted testimony as to the state of medical ethics in the United States and elsewhere--testimony that was eagerly offered by the prosecution, which sought to contrast conduct in the Third Reich with comportment in "civilized nations." [End Page 119]

However strenuously the lawyers for the accused worked to undermine the claims about medical ethics elsewhere, their arguments tended to be overwhelmed by evidence of Nazi cruelty and brutality. Defense counsel therefore made no headway when they contended that some Nazi legislation had its counterpart in other countries--that in matters having to do with eugenics, forcible experimentation, sterilization, and even euthanasia, Germany was not entirely alone. As we now appreciate, eugenic thought was widespread, even mainstream, during the 1930s when the Nazis were consolidating their hold on Germany. Following the First World War eugenics was an international movement, in which American and German scientists were leaders in the field. German experts looked appreciatively to the United States on such matters as sterilization laws, as Stefan Kühl has shown in some detail. 48 Racial categories and racial hygiene were part of the contemporary discourse.

Jewish scientists, for example, most of them physicians, had adopted race science "as an instrument of self-definition" since the end of the nineteenth century, and had ruminated freely on the (usually positive) qualities of the Jewish race. 49 Surveying the Jewish scene in 1934, Arthur Ruppin, lecturer in sociology at the Hebrew University of Jerusalem, included a chapter on eugenics in his widely read book The Jews in the Modern World. "Eugenics," the section began, "is gradually leading to the demand that persons of defective predisposition should either not marry, or should at least practise birth control." 50 And in the fourth volume of the Universal Jewish Encyclopedia, first published in 1941, an article on eugenics referred to a wealth of biblical and Talmudic laws and maxims intended to "improve the inborn qualities of the Jewish people, and to guard against any practice that might vitiate the purity of the race, or 'impair the racial qualities of future generations' either physically, mentally or morally." 51 Understandably, this perspective was not heard at the Doctors' Trial.

In regard to experimentation, the defense claimed that the German physicians had acted in emergency wartime circumstances, that the subjects had been prisoners and hence acceptable for medical experimentation, and that in any event those chosen had already been condemned [End Page 120] to death. As to the status of the "subjects"--mostly concentration camp inmates--the prosecution demolished these contentions, most of which were simply misstatements of fact. But the Americans were much less persuasive against the claim that there really existed no internationally agreed-upon ethical code. Andrew Ivy testified that there existed well-established principles of medical ethics dealing with human subjects, recognized internationally. "To your knowledge," he was asked in direct examination, "have any experiments been conducted in the United States wherein these requirements which you set forth were not met?" "Not to my knowledge," was Ivy's reply. 52

As became evident at the trial, Ivy painted far too rosy a picture. While, to be sure, no American physicians sank to the depths of the experimenters in Dachau or Auschwitz, in Allied countries there was extensive violation of the rules that Ivy defined for the Nuremberg court. In the United States the "agreement of the subjects" was assumed to be part of human experiments in wartime; yet, according to David Rothman, in practice this "was often superseded by a sense of urgency that overrode the issue of consent." 53 During World War II, scientists drew upon mental hospitals and prisons for people on whom to experiment, and relied heavily upon conscientious objectors as well. One of the prosecution's own witnesses, the German psychiatrist Werner Leibbrandt, contended in cross-examination that by using prisoners as subjects American researchers might themselves have been guilty of violating the Hippocratic oath. In cross-examination, Andrew Ivy admitted that he himself had conducted dangerous experiments on conscientious objectors and prisoners in wartime, but he insistently denied that American research fell short in ethical terms. 54 As has recently been established, Ivy "flirted with perjury" in his rejection of any parallel between Nazi wartime experiments and those conducted in the United States. 55 [End Page 121]

In general, we can now appreciate, the record in the United States on human experimentation was quite mixed. Sometimes researchers were highly attentive to ethical concerns, but sometimes they were not, as Rothman observes:

The research into dysentery, malaria, and influenza revealed a pervasive disregard of the rights of subjects--a willingness to experiment on the mentally retarded, the mentally ill, prisoners, ward patients, soldiers, and medical students without concern for obtaining consent. Yet, research into survival under hardship conditions and into gonorrhea was marked by formal and carefully considered protocols that informed potential subjects about the risks of participation. 56

Practice varied considerably, and one important reason for this was that during the war there were no formal requirements of the American Medical Association (AMA) on the subject of consent to human experimentation. Such requirements were prepared only at the end of 1946, probably in response to Andrew Ivy's report to the AMA on the Nuremberg prosecution's case. As part of the case that the German experiments had violated generally accepted ethical principles, Ivy testified about these requirements at Nuremberg, but it was only during vigorous cross-examination that he admitted that these rules had not existed during the war and had in fact been prepared only when the Nuremberg proceedings were under way. 57

What did the defendants achieve in their efforts to broaden the context of understanding? Looking at the judgment, one should say: virtually nothing. In its unmemorable discourse, Military Tribunal I offered no food for thought about context beyond articulating the ten principles of the Nuremberg Code, probably drafted by Andrew Ivy and Leo Alexander. 58 From the courtroom contest as well, probably nothing was gained. Overall, the medical crimes discussed during the trial were so shocking, so cruel, so egregious in their violation not only of professional standards but of the most elementary notions of decency, that it seemed futile, even churlish, to identify common ideologies or weaknesses in the ethical standards elsewhere and thereby promote the exculpation of the [End Page 122] accused. The Doctors' Trial, therefore, offered little international perspective on its subject.

As I noted at the beginning of this article, the prosecution hoped that the trial would explain to the world why and how the Nazi medical crimes happened. To an important degree, the organizers succeeded in their goal of presenting evidence of almost unbelievable medical wrongdoing. In addition to promoting enlightened rules for human experimentation, this was a major achievement, and one that continues to inspire action. 59 The "why," however, proved much more elusive. As I have suggested, politics, practical difficulties, and judicial practice limited the capacity of the trial to go very far in this direction. Indeed, by ignoring a searching inquiry into this question and by limiting the focus to some aspects of Nazi criminality while avoiding others, the trial may even have facilitated the evasion of responsibility that has characterized much of postwar German medicine. The crimes of the physicians are only now being explained. This has become the task of historians and others who contemplate what went so wrong a half-century ago.

Michael R. Marrus is Professor of History and Dean of Graduate Studies at the University of Toronto, 65 St. George Street, Toronto, Canada M5S 2Z9 (e-mail: mmarrus@chass.utoronto.edu). He is also a fellow of the Royal Society of Canada. A graduate of the University of Toronto, he received his M.A. and Ph.D. degrees from the University of California at Berkeley. Among his books are Vichy France and the Jews, coauthored with Robert Paxton (1981); The Unwanted: European Refugees in the Twentieth Century (1985), and The Holocaust in History (1987). His most recent book is The Nuremberg War Crimes Trial, 1945-46: A Documentary History (1997).

Notes

1. Robert H. Jackson, The Nürnberg Case as Presented by Robert H. Jackson, Chief of Counsel for the United States, Together with Other Documents (New York: Cooper Square, 1971), pp. 30-31.

2. Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London 1945 (Washington, D.C.: Department of State, 1949), p. 48.

3. International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946, 42 vols. (Nuremberg: International Military Tribunal, 1947-1949), 3: 92.

4. Michael Burleigh, Death and Deliverance: "Euthanasia" in Germany c. 1900-1945 (Cambridge: Cambridge University Press, 1994), p. 273.

5. Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuernberg, October 1946-April 1949, 15 vols. (Washington, D.C.: U.S. Government Printing Office, 1949), 1: 28 (hereinafter cited as TWC).

6. Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials under Control Council Law No. 10 (Washington, D.C.: U.S. Government Printing Office, 1949), p. 101.

7. TWC, 1: 27.

8. Ibid., p. 183.

9. Ibid.

10. Ibid.

11. Taylor, Final Report (n. 6), p. 64.

12. "Between September 1939 and April 1945 all of the defendants herein, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together and with each other and with diverse other persons, to commit war crimes and crimes against humanity" (TWC, 1: 10).

13. Taylor, Final Report (n. 6), p. 14.

14. Christian Pross, "Nazi Physicians: Criminals, Charlatans, or Pioneers? The Commentaries of the Allied Experts at the Nuremberg Medical Trial," in Medical Science without Compassion: Past and Present, ed. Charles Roland, Henry Friedlander, and Benno Müller-Hill (Hamburg: Hamburger Stiftung für Sozialgeschichte des 20. Jahrhunderts, 1992); Tom Bower, The Pledge Betrayed: America and Britain and the Denazification of Postwar Germany (Garden City, N.Y.: Doubleday, 1982), p. 245.

15. Taylor, Final Report (n. 6), p. 241. In only one of the twelve cases were there more acquittals: the I.G. Farben case, in which the prosecution failed to prove that some of the defendants knew that the Zyklon B gas supplied to the SS was used for murder.

16. Ibid., pp. 75-77; Gerald Posner and John Ware, Mengele: The Complete Story (New York: McGraw-Hill, 1986), chap. 3; Bower, Pledge Betrayed (n. 14), pp. 220, 332.

17. Leo Alexander, "Medical Science under Dictatorship," New England J. Med., 1949, 241: 39-47, quotation on p. 39.

18. TWC, 1: 29.

19. Ibid.

20. Ibid., p. 69.

21. Ibid.

22. TWC, 2: 122; Taylor, Final Report (n. 6), pp. 70-71.

23. Robert Proctor, Racial Hygiene: Medicine under the Nazis (Cambridge: Harvard University Press, 1988), p. 38; Geoffrey Cocks, "The Old as New: The Nuremberg Doctors' Trial and Medicine in Modern Germany," in Medicine and Modernity: Public Health and Medical Care in Nineteenth- and Twentieth-Century Germany, ed. Manfred Berg and Geoffrey Cocks (Cambridge: Cambridge University Press, 1997), pp. 173-91.

24. Burleigh, Death and Deliverance (n. 4), p. 238.

25. Alexander, "Medical Science under Dictatorship" (n. 17), p. 44.

26. Proctor, Racial Hygiene (n. 23), p. 62.

27. Ibid., p. 64.

28. Michael Burleigh and Wolfgang Wippermann, The Racial State: Germany 1933-1945 (Cambridge: Cambridge University Press, 1991), p. 69.

29. Michael H. Kater, Doctors under Hitler (Chapel Hill: University of North Carolina Press, 1989), pp. 4-5.

30. Henry Friedlander, The Origins of Nazi Genocide: From Euthanasia to the Final Solution (Chapel Hill: University of North Carolina Press, 1995), p. 128; Benno Müller-Hill, Murderous Science: Elimination by Scientific Selection of Jews, Gypsies, and Others, Germany 1933-1945, trans. George R. Fraser (Oxford: Oxford University Press, 1988).

31. Burleigh and Wippermann, Racial State (n. 28), p. 56. In this vein, see William Seidelman, "Medical Selection: Auschwitz Antecedents and Effluent," Holoc. Genoc. Stud., 1989, 4: 435-48; Mario Biagioli, "Science, Modernity, and the 'Final Solution,'" in Probing the Limits of Representation: Nazism and the "Final Solution", ed. Saul Friedlander (Cambridge: Harvard University Press, 1992), pp. 185-205.

32. TWC, 1: 16-17.

33. Jean Edward Smith, Lucius D. Clay: An American Life (New York: Henry Holt, 1990), p. 301.

34. Bradley F. Smith, The Road to Nuremberg (New York: Basic Books, 1981).

35. Report of Robert H. Jackson (n. 2), p. 333.

36. William Allen Zweck, "Nuremberg: Proceedings Subsequent to Goering et al.," North Carolina Law Rev., 1948, 26: 374-75; Matthew Lippman, "The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany," Indiana Internat. Comp. Law Rev., 1992, 3: 90-91.

37. Gisela Bock, Zwangssterilisation im Nationalsozialismus: Studien zur Rassenpolitik und Frauenpolitik (Opladen: Westdeutscher Verlag, 1986), pp. 237-38.

38. Proctor, Racial Hygiene (n. 23), pp. 108-9.

39. TWC, 1: 44-49, quotation on p. 48.

40. Ernst Klee, "Euthanasie" im NS-Staat: Die "Vernichtung lebensunwerten Lebens" (Frankfurt am Main: S. Fischer, 1983); Hans-Walter Schmuhl, Rassenhygiene, Nationalsozialismus, Euthanasie: Von der Verhütung zur Vernichtung "lebensunwerten Lebens," 1890-1945 (Göttingen: Vandenhoeck und Ruprecht, 1987).

41. TWC, 1: 66, 809, quotation on p. 66.

42. TWC, 2: 179-80, 196-98, quotation on p. 198.

43. Schmuhl, Rassenhygiene (n. 40), p. 370.

44. Andrew Ivy, "Statement," in Alexander Mitscherlich and Fred Mielke, Doctors of Infamy: The Story of the Nazi Medical Crimes, trans. Heinz Norden (New York: Henry Schuman, 1949), ix-xiii, quotation on p. x.

45. TWC, 1: 74.

46. TWC, 2: 181.

47. TWC, 1: 17.

48. Stefan Kühl, The Nazi Connection: Eugenics, American Racism, and German National Socialism (New York: Oxford University Press, 1994).

49. John M. Efron, Defenders of the Race: Jewish Doctors and Race Science in Fin-de-Siècle Europe (New Haven: Yale University Press, 1994), p. 9.

50. Arthur Ruppin, The Jews in the Modern World (London: Macmillan and Co., 1934), p. 261.

51. Max Reichler, "Eugenics," in The Universal Jewish Encyclopedia, new ed., 10 vols. (New York: KTAV Publishing House, 1969), 4: 191.

52. TWC, 2: 83-84.

53. David J. Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991), p. 30.

54. TWC, 2: 111-18. Ivy's testimony, argues Dr. Evelyne Shuster, "reflects what has remained to this day the double standard of human experimentation, i.e. therapeutic goals and rules are used to justify otherwise unjustifiable experiments. . . . Ivy condemned Nazi medical experiments because they violated Hippocratic moral ideals, while at the same time he abandoned Hippocratic ethics to justify his own experiments" ("Medical Ethics at Nuremberg: Leo Alexander, Andrew C. Ivy, and Werner Leibbrandt," unpublished paper, 1996). I am grateful to Dr. Shuster for the opportunity to quote from this paper. See also Evelyne Shuster, "The Nuremberg Code: Hippocratic Ethics and Human Rights," Lancet, 1998, 351: 974-77.

55. Jon M. Harkness, "Nuremberg and the Issue of Wartime Experiments on U.S. Prisoners: The Green Committee," JAMA, 27 November 1996, 276: 1672-75, quotation on p. 1674.

56. Rothman, Strangers at the Bedside (n. 53), pp. 47-48.

57. Jay Katz, "The Nuremberg Code and the Nuremberg Trial : A Reappraisal," JAMA, 27 November 1996, 276: 1662-66.

58. Michael Grodin, "Historical Origins of the Nuremberg Code," in The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation, ed. George J. Annas and Michael A. Grodin (New York: Oxford University Press, 1992), pp. 121-44, especially p. 134.

59. See Michael A. Grodin, George J. Annas, and Leonard H. Glantz, "Medicine and Human Rights: A Proposal for International Action," in Medicine, Ethics, and the Third Reich: Historical and Contemporary Issues, ed. John J. Michalczyk (Kansas City, Mo.: Sheed and Ward, 1994), pp. 199-209.

 

 
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