CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(e) War crimes » Art. 8(2)(e)(xi)-2 Medical or scientific experiments » 5. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such person’s or persons’ interest.

Element:

5. The conduct was neither justified by the medical, dental or hospital treatment of such person or persons concerned nor carried out in such persons or persons interest.

5.1. The conduct was neither justified by the medical, dental or hospital treatment of their person or persons concerned; AND

P.19. Evidence that the experiments had no value.

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. 15:

According to one of the witnesses Professor Clauberg admitted that his experiments were of no scientific value. Identical results were previously obtained on animals and were and were well known in the medical profession.

P.20. Evidence of healthy persons being subjected to experimental treatment.

A. Legal source/authority and evidence:

These experiments were performed on young and healthy Jewish women of 20-30 years of age, who had regular periods, a not too narrow cervix and who had borne at least one child. After the experiments they lost their periods.

They were performed not only on older and sick women, but also on young girls. Excisions were made on completely healthy persons with no suspicion of cancer of the genital organs. Incisions were in fact amputations of the cervical part of the uterus and in each case a damage of the submucous layer of the uterine body occurred.

P.21. Evidence of infecting healthy people with disease.

A. Legal source/authority and evidence:

Frequently blood of people suffering from typhus was injected before labour.

[] Experiments of transplanting cancerous bodies to the uterus and cervical channel were also carried out.

Trial of Karl Brandt et al., United States Military Tribunal, Judgment of 20 August 1947, in Nuremberg Military Tribunals, Trials of War Criminals Volume II, pp. 175-178:

"(C) Malaria Experiments. From about February 1942 to about April 1945 experiments were conducted at the Dachau concentration camp in order to investigate immunization for and treatment of malaria. Healthy concentration camp inmates were infected by mosquitoes or by injections of extracts of the mucous glands of mosquitoes. After having contracted malaria the subjects were treated with various drugs to test their relative efficacy. Over 1,000 involuntary subjects were used in these experiments. Many of the victims died and others suffered severe pain and permanent disability.

(D) Lost (Mustard) Gas Experiments. At various times between September 1939 and April 1945 experiments were conducted at Sachsenhausen, Natzweiler, and other concentration camps for the benefit of the German Armed Forces to investigate the most effective treatment of wounds caused by Lost gas. Lost is a poison gas which is commonly known as mustard gas. Wounds deliberately inflicted on the subjects were infected with Lost. Some of the subjects died as a result of these experiments and others suffered intense pain and injury.

[] (E) Sulphanilamide Experiments. From about July 1942 to about September 1943 experiments to investigate the effectiveness of sulphanilamide were conducted at the Ravensbrueck concentration camp for the benefit of the German Armed Forces. Wounds deliberately inflicted on the experimental subjects were infected with bacteria such as streptococcus, gas gangrene, and tetanus. Circulation of blood was interrupted by tying off blood vessels at both ends of the wound to create a condition similar to that of a battlefield wound. Infection was aggravated by forcing wood shavings and ground glass into the wounds. The infection was treated with sulphanilamide and other drugs to determine their effectiveness. Some subjects died as a result of these experiments and others suffered serious injury and intense agony.

[] (H) Epidemic Jaundice Experiments. From about June 1943 to about January 1945 experiments were conducted at the Sachsenhausen and Natzweiler concentration camps, for the benefit of the German Armed Forces, to investigate the causes of, and inoculations against, epidemic jaundice. Experimental subjects were deliberately infected with epidemic jaundice, some of whom died as a result, and others were caused great pain and suffering.

[] "(J) Spotted Fever (Fleckfieber)* Experiments. From about December 1941 to about February 1945 experiments were conducted at the Buchenwald and Natzweiler concentration camps, for the benefit of the German Armed Forces, to investigate the effectiveness of spotted fever and other vaccines. At Buchen- wald, numerous healthy inmates were deliberately infected with spotted fever virus in order to keep the virus alive; over 90 percent of the victims died as a result. Other healthy inmates were used to determine the effectiveness of different spotted fever vaccines and of various chemical substances. In the course of these experiments 75 percent of the selected number of inmates were vaccinated with one of the vaccines or nourished with one of the chemical substances and, after a period of 3 to 4 weeks, were infected with spotted fever germs. The remaining 25 percent were infected without any previous protection in order to compare the effectiveness of the vaccines and the chemical substances. As a result, hundreds of the persons experimented upon died. Experiments with yellow fever, smallpox, typhus, paratyphus A and B, cholera, and diphtheria were also conducted. Similar experiments with like results were conducted at Natzweiler concentration camp.

P.22. Evidence of deliberately inflicting wounds.

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. 176:

[] "(E) Sulphanilamide Experiments. From about July 1942 to about September 1943 experiments to investigate the effectiveness of sulphanilamide were conducted at the Ravensbrueck concentration camp for the benefit of the German Armed Forces. Wounds deliberately inflicted on the experimental subjects were infected with bacteria such as streptococcus, gas gangrene, and tetanus. Circulation of blood was interrupted by tying off blood vessels at both ends of the wound to create a condition similar to that of a battlefield wound. Infection was aggravated by forcing wood shavings and ground glass into the wounds. The infection was treated with sulphanilamide and other drugs to determine their effectiveness. Some subjects died as a result of these experiments and others suffered serious injury and intense agony.

P.23. Evidence of unnecessary surgery.

A. Legal source/authority and evidence:

"(F) Bone, Muscle, and Nerve Regeneration and Bone Transplantation <sic> Experiments. From about September 1942 to about December 1943 experiments were conducted at the Ravensbrueck concentration camp, for the benefit of the German Armed Forces, to study bone, muscle, and nerve regeneration, and bone transplantation from one person to another. Sections of bones, muscles, and nerves were removed from the subjects. As a result of these operations, many victims suffered intense agony, mutilation, and permanent disability.

P.24. Evidence of inflicting burns.

A. Legal source/authority and evidence:

Trial of Karl Brandt et al., United States Military Tribunal, Judgment of 20 August 1947, in Nuremberg Military Tribunals, Trials of War Criminals Volume II, p.180:

"(L) Incendiary Bomb Experiments. From about November 1943 to about January 1944 experiments were conducted at the Buchenwald concentration camp to test the effect of various pharmaceutical preparations on phosphorus burns. These burns were inflicted on experimental subjects with phosphorus matter taken from incendiary bombs, and caused severe pain, suffering, and serious bodily injury."

P.25. Not sufficient: Evidence of experimentation alone.

A. Legal source/authority and evidence:

The great weight of the evidence before us is to the effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study. All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:

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 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.

5. No experiment should be conducted where there is 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.

5.2. The conduct was not carried out in the interests of the person or persons concerned.

P.26. Evidence of lack of volunteering of the person or persons for experiments.

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. 34:

Another witness, who had been a nurse in the ward where the experiments were carried out, testified that from 180 to 200 concentration camp inmates were subject to the high-altitude experiments, and of these, 10 were volunteers.

P.27. Evidence of lack of knowledge of the person or persons.

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. 278:,

With this end in view Himmler instructed Brack to inquire of physicians who were engaged in the Euthanasia Program about the possibility of a method of sterilizing persons without the victims knowledge.

P.28. Evidence inferred from taking action despite persons pleas.

A. Legal source/authority and evidence:

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 163:

163. []There is no doubt that by these words, the Accused was ordering the murder of each of the 15 Tutsi survivors, given that once these words were uttered, the attackers attacked the survivors with machetes, with two of them mutilating Witness TAX, despite her pleas, leaving her for dead.

P.29. 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.30. Evidence of untrained personnel.

A. Legal source/authority and evidence: