The Nuremberg Doctors' Trial in Historical Context
Michael R. Marrus
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
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
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.
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.
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
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
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
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
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
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:
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]
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
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
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.
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]
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
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.
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
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
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.
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.
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.
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:
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
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
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: firstname.lastname@example.org). 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).
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.
Burleigh, Death and Deliverance: "Euthanasia" in Germany c. 1900-1945
(Cambridge: Cambridge University Press, 1994), p. 273.
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.
11. Taylor, Final Report (n. 6), p. 64.
"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.
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.
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.
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.
20. Ibid., p. 69.
22. TWC, 2: 122; Taylor, Final Report (n. 6), pp. 70-71.
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.
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.
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).
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.
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.
Gisela Bock, Zwangssterilisation im Nationalsozialismus: Studien zur
Rassenpolitik und Frauenpolitik (Opladen: Westdeutscher Verlag, 1986),
38. Proctor, Racial Hygiene (n. 23), pp. 108-9.
39. TWC, 1: 44-49, quotation on p. 48.
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.
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.
Stefan Kühl, The Nazi Connection: Eugenics, American Racism, and German
National Socialism (New York: Oxford University Press, 1994).
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.
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.
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.
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.