It has now been seventy years since a United States military tribunal tried twenty-three people in Nuremberg, including twenty doctors and medical researchers,1 for war crimes and crimes against humanity. They were accused of having constituted a collection of skeletons, implementing the T4 euthanasia program and having carried out medical experiments2 on prisoners in the concentration camps at Auschwitz, Buchenwald, Dachau, Natzweiler, Ravensbrück and Sachsenhausen between September 1939 and April 1945 – the period over which the tribunal had jurisdiction. Of the twenty-three defendants, seven were acquitted, seven sentenced to death3 and the others given prison sentences of at least ten years.4
This trial (Karl Brandt and others)5 was set up by the authority responsible for the American Zone of Occupation, the Office of Military Government, United States (OMGUS), which in October 1946 created the United States Military Tribunal.6 It was the first of the trials carried out under article 6 of the London Agreement of 8 August 19457 and Law no. 10 issued by the Allied Control Council on 20 December 1945.8 The trial began on 9 December 1946, coming to an end less than a year later, with pronouncement of the verdicts and sentences respectively on 19 and 20 August 1947.
Two years after the end of this trial, twelve former members of the Japanese armed forces, including six members of Unit 7319 and two members of Unit 100,10 were tried in the USSR. This one is far less well-known than its American counterpart,11 taking place from 25-30 December 1949 in the city of Khabarovsk.12 According to the indictment of 16 December 1949 drawn up by Prosecutor Berezovsky,13 the defendants were accused of having tested biological weapons on Russian and Chinese prisoners. The indictment thus mentions biological weapons tests which aimed at spreading different diseases and bacteriological agents such as typhoid fever, the plague, cholera or tuberculosis.14 It also mentions experiments conducted on women to test ways of treating syphilis as well as experimental treatment for limbs, which incurred their previous freezing. One defendant, Kawashima Kiyochi, stated during the trial that at least 600 people died every year due to the experiments carried out within Unit 731.15 According to Matsumura Tomokatsu’s testimony, these experiments on humans were given the green light by the Commander-in-Chief Kenkichi Ueda, and by his successor Yoshijirō Umezu.16 All the defendants pleaded guilty and were given sentences ranging from 3 to 25 years in a labour camp.
Conversely, the Nuremberg defendants did not plead guilty, and this is in large part due to the defense’s argument, which sought to draw a parallel between the experiments carried out in Nazi Germany, and those which were being performed everywhere else in the world, particularly in the United States.17 It should not be forgotten that even as the Nuremberg trial was going on, American researchers continued infecting African-Americans in Tuskegee with syphilis,18 and more than 1300 Guatemalan prisoners – without their consent – with the same disease in addition to gonorrhoea and chancroid to subsequently study how they progressed, with or without treatment.19
The Nuremberg Doctors’ Trial is thus located at a crossroads where three types of issues intersect: military ones, scientific ones and ideological ones. Military ones because this trial was related to all of the other trials aimed at prosecuting war crimes and crimes against humanity committed by the Nazi state during the Second World War. Scientific ones because the trial was specifically aimed at acts carried out during this period by German researchers and doctors on people who were treated as mere guinea pigs. And lastly ideological ones because the courtroom was the theatre of a confrontation between two conflicting visions: on the one hand, a relativistic and totalitarian vision which asserted the supremacy of the social body over the individual20 and on the other a universalist and liberal vision which contended that it was the individual who had precedence over society.21
In his opening statement, Prosecutor Telford Taylor appeared to mainly focus on the latter issues to pinpoint the reasons and the motives which led to the dehumanization of the victims.22 He thus pointed to the “prostitution”23 of doctors and medical science to Nazi ideology. However, whereas for him the crime was almost biomedical,24 “committed in the name of medical science”25 yet without being scientific,26 the developments of the trial would lead the court to take a different stance. Thinking in terms of the three types of issues listed above – military, scientific and ideological – the judges would define rules for a system of protection of bodily integrity for people regarding experiments on human beings. Moving away from a dichotomous stance delineating true science/false science, they were able to outline ten ethical and legal principles to regulate all clinical experiments,27 which were subsequently known as the “Nuremberg Code”.
Where most legal commentaries thus focus on the mere reading of these ten principles, some authors even writing on the “lost truth of the Nuremberg Code”,28 I would like to highlight some of the steps in the legal journey of the American judges. Starting from the Martens Clause, they tried to find their path through international medical ethics. Unfortunately, they failed to address one of the most difficult issues in clinical trials and human experimentation: the almost unavoidable context of exploitation of any situation where a person is used as an object for the good of others.
Pour lire la suite : rendez-vous au numéro 17-6 de l’International Criminal Law Review
- Among the doctors and medical researchers were Karl Brandt (Hitler’s personal doctor), Siegfried Handloser (Chief of German Armed Forces Medical Service), Paul Rostock (Chief of the Office for Medical Science and Research), Oskar Schroeder (Chief of German Air Force Medical Service), Karl Genzken (Chief of Waffen SS Medical Service) and Karl Gebhardt (Heinrich Himmler’s personal doctor and President of the German Red Cross).
- High altitude experiments, freezing experiments, malaria experiments, mustard gas experiments, sulfonamide experiments, bone transplantation and bone muscle and nerve regeneration experiments, sea water experiments, jaundice experiments, sterilization experiments, typhus experiments, poison experiments, phosphorus burns experiments.
- Namely Viktor Brack, Karl Brandt, Rudolf Brandt, Karl Gebhardt, Waldemar Hoven, Joachim Mrugowsky, and Wolfram Sievers.
- For an accurate analysis of this trial, cf. Yves Ternon, ‘Le procès des médecins. Actualisation’, 160 Revue d’histoire de la Shoah (1997) pp. 10-30.
- United States of America vs. Karl Brandt and al. (case n°1), 20 August 1947, United States Military Tribunal.
- USA, OMGUS, Ordinance n°7. Organization and powers of certain military tribunals, 18 October 1946.
- London Agreement, 8 August 1945, reproduced in Trial of the Major War Criminals before the International Military Tribunal, Volume I: Official Documents (International Military Tribunal Secretariat, 1947), pp. 8-19.
- Allied Control Council, Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, especially Article 3 recognizing the right of each occupying authority to undertake proceedings against people accused of the crimes in question.
- Unit 731, otherwise known as the Epidemic Prevention and Water Purification Department of the Kwantung Army (a group of the Japanese Imperial Army established in Kwantung) was founded in 1936 by a secret decree issued by Emperor Hirohito, according to Kawashima Kiyoshi’s testimony. It was directed by Ishii Shiro and stationed in Pingfang, one of the districts of Harbin, in the puppet state of Manchukuo. Many prisoners of war were used there as guinea pigs for experiments, particularly on the plague and cholera. Cf. Daniel Barenblatt, A Plague Upon Humanity: The Secret Genocide of Axis Japan’s Germ Warfare Operation (HarperCollins, New York, 2004).
- Unit 100, otherwise known as the Kwantung Army Warhorse Disease Prevention Shop was stationed in Mokotan, a village close to the city of Changchun in the state of Manchukuo. It was directed by Yujiro Wakamatsu. It was supposed to work on animal diseases, but experiments on humans were also carried out there.
- Jing-Bao Nie,‘The West’s Dismissal of the Khabarovsk Trial as “Communist Propaganda”. Ideology, evidence and international bioethics’, 1(1) Journal of Bioethical Inquiry (2004) 32-42.
- This trial took place on the basis of the decree issued by the Presidium of the Supreme Soviet on 19 April 1943, relating to war crimes committed during the Second World War and defining manufacture and use of biological weapons as a war crime. Cf. Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing Bacteriological Weapons (Foreign Languages Publishing House, Moscow, 1950). For further elements on medical crimes committed by Japanese doctors and on the Khabarovsk trial, cf. Jing-Bao Nie, Nanyan Guo, Mark Selden, Arthur Kleinman (eds.), Japan’s Wartime Medical Atrocities. Comparative inquiries in science, history and ethics (Routledge, New York, 2010), particularly the article by Boris G. Yudin, ‘Research on humans at the Khabarovsk War Crimes Trial: a historical and ethical examination’, pp. 59-78.
- Materials on the Trial, supra note 12, p. 15 ss.
- Ibid., p. 20.
- Ibid., p. 138.
- Cf. notably Jon M. Harkness, ‘Nuremberg and the issue of wartime experiments on US prisoners. The Green Committee’, 276(20) JAMA (1996) p. 1674.
- Since 1932, the United States Public Health Service had been carrying out a study on syphilis using African-American individuals, who were suffering from the disease and not receiving treatment, in order to determine the natural progression of the disease without any medication acting upon it. This study only came to an end in 1972 when it was uncovered to the public by Jean Heller, ‘Syphilis Victims in U.S. Study Went Untreated for 40 Years’, New York Times, 26 July 1972. Concerning this affair, cf. among others James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (The Free Press, New York, 1981); Susan M. Reverby, Examining Tuskegee: The Infamous Syphilis Study and its Legacy (University of North Carolina Press, Chapel Hill, 2009). Other similar studies were carried out in Sweden between 1891 and 1955, cf. L. W. Harrison, ‘The Oslo study of untreated syphilis’, 32 British Journal of Venereal Diseases (1956) 70-78 (the author cites the ‘Alabama group’).
- This last test was carried out between 1946 and 1948 and was only revealed to the public in 2010. Cf. U.S. Presidential Commission for the Study of Bioethical Issues, Ethically impossible: STD research in Guatemala from 1946 to 1948, 2011; Susan M. Reverby, ‘Ethical Failures and History Lessons: The U.S. Public Health Service Research Studies in Tuskegee and Guatemala’, 34(1) Public Health Reviews (2012) 1-18.
- Cf. notably Robert N. Proctor, ‘Nazi Doctors, Racial Medicine, and Human Experimentation’, in George J. Annas, Michael A. Grodin (eds.), The Nazi Doctors and the Nuremberg Code. Human Rights in Human Experimentation (Oxford University Press, Oxford, 1992), pp. 17-31; Jean-Pierre Baud, ‘Genèse institutionnelle du génocide’, in Josiane Olff-Nathan (ed.), La science sous le Troisième Reich (Editions du Seuil, Paris, 1993), pp. 177-195; Robert N. Proctor, ‘Nazi medical ethics: ordinary Doctors?’, Military Medical Ethics, vol. 2 (Office of The Surgeon General, Department of the Army, United States of America, 2003), pp. 403-436
- Cf. notably François De Smet, Les Droits de l’homme. Origines et aléas d’une idéologie moderne (Cerf, Paris, 2001); Samuel Moyn, The Last Utopia. Human Rights in History (Harvard University Press, Cambridge, 2010); Olivier Barsalou, La diplomatie de l’universel: la guerre froide, les Etats-Unis et la genèse de la Déclaration universelle des droits de l’Homme, 1945-1948 (Bruylant, Brussels, 2012); Michael Robert Marrus, ‘The Nuremberg Doctors’ Trial in Historical Context’, 73(1) Bulletin of the History of Medicine (1999) 106-123; Ruth Macklin, ‘Universality of the Nuremberg Code’, in George J. Annas, Michael A. Grodin (eds.), The Nazi Doctors and the Nuremberg Code. Human Rights in Human Experimentation (Oxford University Press, Oxford, 1992), pp. 240-257.
- Telford Taylor, ‘Opening statement of the prosecution, December 9, 1946’, Trials of War Criminals before the Nuernberg Military Tribunals Under Control Council Law n°10, vol. I: ‘The Medical Case’, Nuernberg, October 1946 – April 1949 (U.S. Government Printing Office, Washington, 1950), pp. 27-28.
- Ibid., pp. 56 and 58.
- With reference to the work by Marcela Iacub, Le crime était presque sexuel et autres essais de casuistique juridique (Epel, Paris, 2002).
- Taylor, supra note 22, p. 27.
- Ibid., p. 61: ‘Many of these were experiments in name only; we will show them to have been senseless and clumsy and of no real value to medicine as a healing art’. The question of scientific quality as an ethical and/or legal criterion will be explored in the second part of the article.
- Cf. notably: Philippe Amiel, François Vialla, ‘La vérité perdue du « code de Nuremberg »: réception et déformations du « code de Nuremberg » en France’, 2009(4) Revue de droit sanitaire et social (2009) 673-687 ; George J. Annas, Michael A. Grodin (eds.), The Nazi Doctors and the Nuremberg Code, Oxford University Press, 1992; Paul Weindling, ‘Le Code de Nuremberg, Andrew Conway Ivy et les crimes de guerre médicaux nazis’, in Christian Bonah, Etienne Lepicard, Volker Roelcke (eds.), La médecine expérimentale au tribunal. Implications éthiques de quelques procès médicaux au XXe siècle europée (Edition des archives contemporaines, Paris, 2003), pp. 185-213.
- Amiel and Vialla, ibid., pp. 673-687.
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