CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(a) War crimes » Art. 8(2)(a)(ii)-3 Biological experiments » 6. The experiment seriously endangered the physical or mental health or integrity of such person or persons.

Element:

6. The experiment seriously endangered the physical or mental health or integrity of such person or persons.

6.1.1. Evidence of physical manifestations of endangering the physical or mental health or integrity of such person or persons.

P.6. Evidence of severe pain.

A. Legal source/authority and evidence:

United States of America v. Karl Brandt et al., Case No. 5, Judgement (Military Tribunal No. I), 20 August 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 183:

"In many cases experiments were performed by unqualified persons; were conducted at random for no adequate scientific reason, and under revolting physical conditions. All of the experiments were conducted with unnecessary suffering and injury and but very little, if any, precautions were taken to safeguard the human subjects from the possibilities of injury, disability, or death. In every one of the experiments the subjects experienced extreme pain or torture, and in most of them they suffered permanent injury, mutilation, or death, either as a direct result of the experiments or because of lack of adequate follow-up care Obviously all of these experiments involving brutalities, tortures, disabling injury, and death were performed 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 civilised nations, and Control Council Law No. 10. manifestly human experiments under such conditions are contrary to the principles of the law of nations as they result from the usages established among civilised peoples, from the laws of humanity, and from the dictates of the public conscience."

P.7. Evidence of convulsions, spasms and other physical reaction to pain.

A. Legal source/authority and evidence:

"But it is indisputable that the experiments conducted by Dr. Rascher involved torture and suffering in the extreme and in many cases resulted in death. Under the specific guidance of Dr. Rascher, the air pressure was reduced to a point which no flier would ever be required to undergo (14,000 meters). The photographs of the subjects undergoing these experiments indicate extreme agony and leave no doubt that any victim who was fortunate enough to survive had undergone a harrowing experience."

P.8. Evidence of burns and necrosis.

A. Legal source/authority and evidence:

Trial of Öbersturmbannführer Rudolf Franz Ferdinand Hoess, Case No. 38, Judgement (Supreme National Tribunal of Poland), 11-29 March 1947, reported in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol 8 (1948), p. 14:

"These experiments were carried out by Professor Schumann instructed to this purpose by Himmler. They caused undues suffering, permanent injuries or even death of the individuals concerned. The large dosage of X-rays caused not to complete castration, but also burns and necrosis of parts of the body subjected to X-rays."

P.9. Evidence of general illness after treatment.

A. Legal source/authority and evidence:

"Premature termination of pregnancy was carried out [. . .]. Women were ill several weeks after those experiments."

P.10. Evidence of severe danger to physical health.

A. Legal source/authority and evidence:

"Men who were subjected to intensive X-ray treatment and had severe burns of the scrotum and thighs often died. Even if they survived they are in constant danger of death."

P.11. Evidence of a high mortality rate.

A. Legal source/authority and evidence:

Trial of Milch, Law Reports of Trials of War Criminals, Selected and prepared by the United Nations War Crimes Commission, Vol. VII, p. 33:

"He stated that 280-300 prisoners were used in the tests, many of them undergoing as many as three experiments, and that out of the number indicated 80 to 90 died."

P.12. Evidence of X-ray poisoning.

A. Legal source/authority and evidence:

United States of America v. Karl Brandt et al., Case No. 5, Judgement (Military Tribunal No. I), 20 August 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), pp. 278-279:

"Among 10 millions of Jews in Europe, there are, I figure, at least 2-3 millions of men and women who are fit enough to work. Considering the extraordinary difficulties the labour problem presents us with I hold the view that those 2-3 millions should be specially selected and preserved. This can however only be done if at the same time they are rendered incapable to propagate. About a year ago I reported to you that agents of mine have completed the experiments necessary for this purpose. I would like to recall these facts once more. Sterilization, as normally performed on persons with hereditary diseases is here out of the question because it takes too long and is too expensive. Castration by X-ray is however not only relatively cheap, but can also be performed in many thousands on the shortest time. I think at this time that it is already irrelevant whether the people in question become aware of having been castrated after some weeks or months, once they feel the effects."

[] "A Polish Jew testified before the Tribunal that while confined in Auschwitz concentration camp he was marched to Birkenau and forcibly subjected to severe X-ray exposure and was castrated later in order that the effects of the X-ray could be studied."

6.1.2. Evidence of conditions endangering the physical or mental health or integrity of such person or persons.

P.13. Evidence of unsanitary conditions.

A. Legal source/authority and evidence:

"In addition they were performed in terrible conditions with often led to chronic illness, permanent injury or even death. Neither the doctors nor the assistant personnel were properly trained for the purpose. Unsterilized instruments were used."

[] "In addition to the vaginal method, sperm was directly introduced into the uterus. Such a method was dangerous and caused infection of the female genital organs as sperm obtained through artificial ejaculation cannot be aseptic."

P.14. Evidence of untrained personnel.

A. Legal source/authority and evidence:

P.15. Evidence of lack of precaution against dangers for patients.

A. Legal source/authority and evidence:

United States of America v. Karl Brandt et al., Case No. 5, Judgement (Military Tribunal No. I), 20 August 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 183:

"In many cases experiments were performed by unqualified persons; were conducted at random for no adequate scientific reason, and under revolting physical conditions. All of the experiments were conducted with unnecessary suffering and injury and but very little, if any, precautions were taken to safeguard the human subjects from the possibilities of injury, disability, or death. In every one of the experiments the subjects experienced extreme pain or torture, and in most of them they suffered permanent injury, mutilation, or death, either as a direct result of the experiments or because of lack of adequate follow-up care Obviously all of these experiments involving brutalities, tortures, disabling injury, and death were performed 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 civilised nations, and Control Council Law No. 10. Manifestly human experiments under such conditions are contrary to the principles of the law of nations as they result from the usages established among civilised peoples, from the laws of humanity, and from the dictates of the public conscience."

6.1.3. Evidence of injury to mental health.

P.16. Evidence of changes in behaviour.

A. Legal source/authority and evidence:

"German personnel performing experiments often observed from hiding the behavious of castreed Jewish men and women, who were especially accommodated in common. Thus they wanted to ascertain changes which may have occurred within their libido."

6.1.4. Not sufficient: Evidence of treatment of dead persons.

P.17. Not sufficient: Evidence of surgical removal or tissue of dead person.

Trial of Max Schmid, United States General Military Government Court at Dachau, German, 19 May 1947, Law Reports of Trials of War Criminals, UNWCC, Vol.XIII, 1949, pp.151:

"The accused severed the head from the body, boiled it and removed the skin and flesh and bleached the skull which he kept on his desk for several months."

B. Evidentiary comment:

This was considered a war crime, but not the crime of conducting medical experiments. Other cases, which involved cannibalism, do not pertain to this offence.

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