At least five human lives were sacrificed in the sulfanilamide experiments, while an additional six were shot after having survived the operations. All the surviving victims suffered terrible pains and were crippled for life. Nevertheless, the experiments were not even scientifically successful. The results, as reported by Gebhardt and Fischer at the Third Conference of the Consulting Physicians of the Wehrmacht at the Military Medical Academy in Berlin in May 1943, were not adopted, and medical directives were issued which required the continued use of sulfanilamide. (Gebhardt, Fischer, Oberheuser 3, Gebhardt, Fischer, Oberheuser Ex. 10.) The sulfanilamide experiments were entirely unnecessary, since similar results could have been achieved by the treatment of wound infections of German soldiers normally contracted during the course of the war. (Tr. pp. 3334, 3338.)

Gebhardt does not seriously contend that the experimental subjects were volunteers. He admitted that he did not know whether the women consented. He testified he was not interested in that. He left it to the “legal authorities.” He did not discuss this matter with Himmler. (Tr. p. 4214.) By legal authorities, Gebhardt meant Himmler who, as he said, “had the power to execute thousands of people by a stroke of his pen.” (Tr. p. 4025.) Gebhardt, however, showed no interest whatever in the moral or legal character of that power. At one point in his testimony, he stated that the subjects were nonvolunteers forced to submit to the experiments by the State. (Tr. p. 4064.) At still another point, they were “more or less volunteers, condemned persons.” (Tr. p. 4021.)

Gebhardt’s defense, if it can be dignified with that word, is rather that the Polish women had been condemned to death for participation in a resistance movement and that by undergoing the experiments, voluntarily or otherwise, they were to have their death sentences commuted to some lesser degree of punishment whereby they would at least not be executed. This was no bargain reached with the experimental subjects; their wishes were not consulted in the matter. It was, according to Gebhardt, left to the good faith of someone unnamed to see to it the death sentence was not carried out on the survivors of the experiments. Certainly Gebhardt assumed no responsibility, or even interest, in this matter.

The prosecution points out, in connection with this alleged defense, that the proof shows that the experimental subjects who testified before this Tribunal were never so much as accorded a trial; they had no opportunity to defend themselves against whatever crimes they were said to have committed. They were simply arrested and interrogated by the Gestapo in Poland and sent to a concentration camp. They had never so much as been informed that they had been marked for, not sentenced to, death. (Tr. p. 831.) Article 30 of the Regulations Respecting the Laws and Customs of War on Land annexed to the Hague Convention expressly provides that even a spy “shall not be punished without previous trial.” The alleged defense of Gebhardt is accordingly without merit.

Gebhardt would have the Tribunal believe that but for the experiments all these Polish girls would be dead; that he preserved the evidence now being used against him. Nothing could be further from the truth. There is no proof in the record that these women would have been executed if they had not undergone the experiments. The witness Maczka is living proof of the contrary. She was arrested for resistance activities on 11 September 1941, and shipped to Ravensbrueck on 13 September. (Tr. p. 1433.) She was not an experimental subject yet she lives today. Substantially all the Polish experimental subjects arrived in Ravensbrueck in September 1941. (Tr. pp. 788, 817, 840.) These girls had not been executed by August 1942 when the experiments began. Indeed, it was a surprise to Gebhardt, according to his testimony, that they were used at all since during July 1942 the experiments were conducted on men. There were some 700 Polish girls in that transport. (NO-877, Pros. Ex. 228; Tr. p. 4216.) There is no evidence that a substantial number were ever executed even though most of them were not experimented on.

No, the proof has shown beyond controversy that these Polish women could not have been legally executed. The right to grant pardons in cases of death sentences was exclusively vested in Hitler by a decree of 1 February 1935, Reich Law Gazette [RGBl], I, page 74. (NO-3070, Pros. Ex. 531.) On 2 May 1935, Hitler delegated the right to make negative decisions on pardon applications to the Reich Minister of Justice. (NO-3071, Pros. Ex. 532.) On 30 January 1940 (RGBl, I, p. 399), Hitler delegated to the Governor General for the occupied Polish territories the authority to grant pardons and to make denying decisions in pardon matters for the occupied Polish territories. (NO-3072, Pros. Ex. 533.) By edict, dated 8 March 1940, VOB1 GGP I p. 99, the Governor General of occupied Poland ordered with reference to the execution of the right to pardon in the case of death sentences that:

Assuming arguendo that the experimental subjects had all committed substantial crimes, that they were all properly tried by a duly constituted court of law, that they were legally sentenced to death, it is still clear from the decrees set forth above that these women could not have been legally executed until such time as the Governor General of occupied Poland had decided in each case not to make use of his pardon right. There has been no proof that the Governor General had ever acted with respect to pardoning the Polish women used in the experiments, or, for that matter, any substantial number of those not used in the experiments.

The only reason these 700 Polish women were transported from Warsaw and Lublin to Ravensbrueck was because the Governor General had not approved their execution. Otherwise they would have been immediately executed in Poland. At the very least, these women were entitled to remain unmolested so long as the Governor General took no action. He may never have acted or, when he did, he may have acted favorably on the pardon.

The affidavit of Schiedlausky, the camp doctor at Ravensbrueck, shows that the Governor General had not turned down a pardon when the experiments started. He said on page four of the original:

At still a later point, on page 15 of the original, he said:

Schiedlausky was in Ravensbrueck from December 1941 until the middle of August 1943. During that long period of time only 25 of over 700 Polish inmates were made eligible for execution by action of the Governor General. Who is to say that the majority of these 700 Polish women did not live through the war even though they did not undergo the experiments? Certainly it was incumbent on the defense to prove the contrary by a preponderance of the evidence. This it did not do by any evidence.

The defendants Gebhardt, Fischer, and Oberheuser cannot claim that they believed in good faith that the Polish women could have been legally executed. Even the camp doctor Schiedlausky knew that the Governor General had to approve the execution. Moreover, the large number of 700 women being sentenced to death at this early stage of the war was enough to put any reasonable person on notice that something was wrong.

Additionally, the uncontradicted evidence proves that survival of the experiments was no guarantee whatever of avoiding execution in any event. At least six of the experimental subjects were executed after having survived the experiments. (Tr. pp. 1449, 797, 845, 863.) The names of the Polish girls who were shot were Pajaczkowska, Gans, Zielonka, Rakowska, Sobolewska, and Gutek. (NO-873, Pros. Ex. 226; NO-861, Pros. Ex. 232.) It was not a question of experimentation or execution but experimentation and execution.

Indeed, in February 1945, an effort was made to execute all the experimental subjects. They were ordered to report to one block and remain there. They were informed that they would be transferred to the Gross-Rosen concentration camp, but it was common knowledge that Gross-Rosen was already in the hands of the Allies. They, therefore, knew that they were going to be executed and so took different identification numbers and hid themselves. This was possible because of disorganization in the camp. (Tr. pp. 1450-1, 862-3; NO-876, Pros. Ex. 225; NO-877, Pros. Ex. 228.)

If one takes the case of the defense at its face value, the Tribunal is in effect asked to rule that it is legal for military doctors of a nation at war to experiment on political prisoners of an occupied country who are condemned to death, to experiment on them in such a way that they may suffer death, excruciating pain, mutilation, and permanent disability—all this without their consent and in direct aid of the military potential of their enemy. There is no valid reason for limiting such a decision to civilian prisoners; the experiment would certainly have been no worse had it been performed on Polish or American prisoners of war. It is impossible to consider seriously the ruling being sought for by the defense.

c. Selection from the Argumentation of the Defense

EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT GEBHARDT

The Sulfanilamide Experiments

Of all medical experiments forming the subjects of the indictment, the experiments for testing sulfanilamides were undoubtedly the most directly connected with the war. The problem of wound infection is one with which every nation at war must concern itself especially in modern warfare. This problem is not only one of great importance to the life and health of the individual wounded soldier, but it may have a decisive effect on the strategical position and on the outcome of the war itself through the resultant gaps in the ranks. Already the First World War showed that the majority of soldiers do not die on the battlefield itself and that in most cases death is not the direct result of a wound, but that the heavy losses must be attributed to infection of wounds received. These experiences have been confirmed in the Second World War and the special conditions prevailing in Russia and the climatic conditions due to the winter there have shown even more than in the First World War that wound infection was a medical and tactical problem of the highest importance for the troops and their health. As regards details, I refer to statements made in this connection on the witness stand by several defendants in these proceedings.

Consequently, it could not come as a surprise that in this war, too, efforts were made to deal with wound infection not only by using surgical measures, but that a way was sought to prevent the formation and spreading of bacterial infections or at least to confine them within reasonable limits by using chemical preparations.

Such efforts seemed the more called for as the war in the East not only meant an immense strain on the resources in material and personnel in general, but also in view of the fact that especially the supply of the army troops and the Waffen SS with medical officers and, above all, with trained field surgeons became more and more difficult. Had it been possible to assist the field medical officers at the front and at the main dressing stations with a reliable and effective chemo-therapeutic preparation against bacterial wound infection, progress of vast importance would have been achieved.

On the other hand, however, it was impossible to overlook the fact that the introduction of a chemo-therapeutic preparation which did not operate safely involved a certain amount of danger to an effective medical care of the wounded and consequently to the war potential of the wounded and consequently to the war potential of the German Wehrmacht and its striking power. In his lecture on the chemo-therapy of wound infection as delivered before the First Conference East of the Consulting Specialists on 18 May 1943, which I submitted as part of the report dealing with this conference, (Gebhardt, Fischer, Oberheuser 1, Gebhardt, Fischer, Oberheuser Ex. 6.) Professor Dr. Rostock referred to the great danger of chemo-therapy, i. e., the possibility “of making negligent physicians careless in the surgical aspect of wound dressing, since they may place a certain trust in chemo-therapy.”

This warning was all the more in order since, at that time there was not only complete uncertainty as regards the effects of sulfanilamides, but also because there was a divergence in opinions as to the efficacy of this preparation. It has been clearly shown by the evidence that, in spite of close observation of the effects of sulfanilamides in peace time and in war, it was impossible to answer this question. Opinions were very much divided. While some were convinced of the efficacy of these preparations in connection with wound infections, and ascribed extraordinarily good results to them, others were of the opinion that these chemical preparations could at the best be used as a supplement and that if used by themselves, they did not have the properties to prevent bacterial infection resulting from combat wounds. With regard to the details I refer to the statements of the defendants Karl Brandt, Handloser, Rostock, Gebhardt, and Fischer and to Gebhardt Exhibits 6, 7, and 10 as submitted by me during the hearing of the evidence.

In this respect, it is highly interesting to review the scientific discussions of the consulting specialists as contained in the report on the First Conference East on 18 and 19 May 1942. (Gebhardt, Fischer, Oberheuser 1, Gebhardt, Fischer, Oberheuser Ex. 6.) These discussions which took place prior to the sulfanilamide experiments comprising the subject of the indictment give a true picture of the situation as it was at that time with regard to the efficacy of sulfanilamides.

In this respect we are able to distinguish three sharply defined groups. In the group which rejected the chemo-therapeutic treatment of wound infection, Geheimrat Professor Sauerbruch was the leader. He emphatically voiced the opinion that these chemical preparations tend to obscure surgical work and to lead to perfunctory treatment. He requested that the preparations should be critically tested, that is to say, the test should be made by surgeons experienced in general surgery.

In the other camp there were surgeons who claimed to have obtained extraordinarily favorable results in the chemo-therapeutical treatment of bacterially infected wounds. Among them was Dr. Krueger, the Berlin professor of surgery, who claimed to have observed a favorable effect of sulfanilamide in as many as 5,000 cases.

To the third group belonged the surgeons, bacteriologists, and pathologists who took the view that nothing definite could be said as yet as to the effects and the efficacy of sulfanilamides as agents in the fight against bacterially infected wounds and that further tests along these lines would have to be made.

Thus it can be said that after the experiences of the Russian winter campaign of 1941-1942, the fight against bacterial wound infections, and the question of the efficacy of the sulfanilamides had become a military-medical and medical-tactical problem of the first importance, about which opinions differed widely. A solution of this problem was the more urgent as an answer had to be found quickly, and on the other hand the fact was not to be disregarded that the experiences gained during nearly 10 years of peace and war in clinics as well as in laboratories were insufficient to answer this question.

The Order for the Execution of these Experiments

The evidence has shown that the order to ascertain the effectiveness of the sulfanilamides by experiments on human beings was given directly by the Head of State and Supreme Commander of the Wehrmacht. Hitler’s order was not at first submitted by Himmler to the defendant Gebhardt, but to Dr. Grawitz, Reich Physician of the SS and police.

However, the evidence showed further that another circumstance arose which from the point of view of time at least caused the order for these experiments to be given, viz, the death of the Chief of the Reich Security Main Office, General of the Waffen SS Reinhardt Heydrich, who in May 1942 was assassinated in Prague. For the details I refer to the testimony of Gebhardt in the witness box on this matter. Heydrich’s death is connected with the experiments themselves only insofar as, at that time, the charge was leveled that Heydrich’s life could have been saved if sulfanilamides, and especially a certain sulfanilamide preparation, had been administered to the wounded man in sufficient quantities. The whole problem of sulfanilamide therapy came to the fore once more in this one case, and then in such an obvious manner that the Head of State himself gave the order to clarify by way of all-out experiments the question which for a long time had been of general importance for the fighting troops at the front.

Within the scope of this evaluation of evidence, it is irrelevant to enter into the details which resulted in the experiments being carried out by the defendant Gebhardt himself. Against the strict order of the Reich Physician SS Grawitz, Gebhardt carried out the experiments not by deliberately inflicting bullet wounds but by causing an infection while observing all possible precautionary measures.

It was further shown by the evidence that the experiments were started with 15 habitual criminals who had been sentenced to death and who had been transferred from the concentration camp Sachsenhausen to Ravensbrueck. In view of the fact that this part of the experiment is not a subject of the indictment, it seems to be unnecessary to enter into this matter. It should, however, be kept in mind that at the conference on 1 June 1942, at which the conditions for the experiments were determined in detail—the defendant Gebhardt has described this conference in detail and I am referring to this—it was understood that the experiments should be carried out with the male habitual criminals who had been sentenced to death and who were to be pardoned in case of survival.

The Experimental Arrangements for the Sulfanilamide Experiments

It was shown by the evidence that the experiments for testing the effectiveness of the sulfanilamides were carried out in three groups. The first group included 15 men (habitual criminals). This group has nothing to do with the charges of the indictment and it is therefore superfluous to enter into this matter more closely.

The second group included 36 female prisoners who had been members of the Polish Resistance Movement and who, for this reason, had been sentenced to death by the German court martial in the General Government. This second group was divided into 3 subgroups of 12 experimental persons each. As to the particulars of the provisions for the experiments, I refer to the testimony of the defendants Gebhardt and Fischer in the witness box. Contrary to the first group, contact substances were used in this second group to accelerate the process of infection. The contact substances were inserted into the open wound together with the germs. Sterile and pulverized glass and sterile wood particles were used as contact substances. These contact substances took the place of earth and uniform particles and were to produce war-like conditions for the wounds, without, however, producing at the same time the general dangers created by infection of the wound by earth and parts of clothing.

As in the case of the first group, staphylococci, streptococci, and gas gangrene bacilli were used as agents. But the contention of the indictment that tetanus germs were also used is incorrect. On the contrary, the evidence has proved that the treatment of tetanus did not come within the scope of these experiments. There was all the less reason for this as it was realized long ago by German military surgery that the sulfanilamide preparations are not suitable for the effective prevention of traumatic tetanus. Here I refer to the directives for the chemo-therapeutical treatment of wound infection which were issued at the First Working Conference East of the Consulting Specialists in May 1943 (Gebhardt, Fischer, Oberheuser 1, Gebhardt, Fischer, Oberheuser Ex. 6)—that is prior to the performance of the sulfanilamide experiments charged in the indictment. In these directives it is expressly pointed out that the outbreak of traumatic tetanus cannot be prevented by means of the sulfanilamides and that tetanus anti-toxin has to be administered as usual.

During the presentation of evidence, only the witness Dr. Maczka maintained that tetanus was actually used in one individual case. This witness did not make her own observations of the case but drew conclusions based exclusively on the pathological picture presented by one of the experimental subjects according to her statements. In view of the fact that even according to the testimony of this witness tetanus bacilli were employed only in one individual case, the assertion of this witness can hardly be taken as a true representation of the facts, for if it had really been the intention of the defendant Gebhardt to determine the effect of sulfanilamides on tetanus too, one experimental subject would certainly not have been sufficient, and more experiments would have been necessary before a final decision regarding this question could possibly have been made.

The third group consisted of 24 experimental subjects who were not treated with any sort of contagion—unlike the procedure applied to the second group—but only had part of the muscle ligatured. The defendants Gebhardt and Fischer have given detailed evidence regarding these new experimental arrangements, how they originated, what considerations had to be regarded, and what part was played by SS Reich Physician Dr. Grawitz. With regard to these details I refer to the testimony of the defendants in the witness box.

The experimental subjects were treated with sulfanilamides as described by the defendants in the witness box. A few persons were not treated with sulfanilamides but were used as control subjects. But that did not mean that these persons were not treated at all. As the evidence has proved, all experimental subjects were treated, namely by surgical measures if the sulfanilamides did not prove effective against the inflammation. For this reason too the experimental subjects to whom sulfanilamides were applied, and where the inflammation did not pass away by itself, were given direct surgical treatment under observance of the generally recognized principles of surgery, particularly as developed in Germany by Gebhardt’s teacher Professor Dr. Lexer. This direct surgical treatment resulted in the scars which the court has seen on the experimental subjects questioned as witnesses. As explained by Professor Dr. Alexander, the expert produced by the prosecution, these scars are the result not of the bacteriological infection but of the operations performed in order to eliminate this infection. In the prosecution case, four experimental subjects were called to give evidence. In addition, the prosecution submitted a series of affidavits given by other persons used as experimental subjects. The statements of the four witnesses questioned in court coincide largely with the testimony given by the defendants Gebhardt, Oberheuser, and Fischer themselves in the witness box. For this reason alone it appears expedient and sufficient for the pronouncement of a just sentence and for the establishment of the true facts to base the sentence exclusively on the testimony of these four witnesses together with the statements of the defendants themselves. This is not only in accordance with the principle of direct and oral proceedings in court prevailing in any modern criminal procedure and which should not be departed from without urgent reason, but also such handling of the case seems suitable because the statements of the four witnesses are identical essentially so that they themselves, together with the statements given by the defendants, can be regarded as a safe basis for a finding—apart from one point which I shall go into later. In addition, the affidavits submitted by the prosecution not only differ in essential points from the statements made by the witnesses in court, but are inconsistent and contradictory in themselves as well. This is shown, above all, by the fact that in several of these affidavits contentions are quite obviously made which are not based on personal and factual observation, but have become known to these witnesses by hearsay. The affidavits, moreover, fail to represent the circumstances in clear chronological order, which makes the whole matter all the more doubtful, as it was proved by the evidence that in the Ravensbrueck camp experiments were obviously also performed by other physicians with whom the defendant in this case had no connection.

Considerable doubts also exist regarding the statements made by the witness Dr. Maczka. The prosecution has submitted two affidavits given by this witness as part of its evidence. When questioned in court, this witness could not maintain the most incriminating contentions which appeared in the two affidavits. Under these circumstances, the court has to consider whether it regards the statements of this witness as sufficiently reliable to enter into the judgment. I would answer this question in the negative, not only because she had to revoke the most essential points of her previous affidavits, but because a large part of her testimony was based not on her own observations, but either on information obtained from other prisoners or on conclusions drawn by her.

d. Evidence