Bulletin of the History of Medicine 75.1 (2001) 37-71
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The Origins of Informed Consent: The International Scientific Commission on Medical War Crimes, and the Nuremberg Code

Paul Weindling

[Tables]

Summary: The Nuremberg Code has generally been seen as arising from the Nuremberg Medical Trial. This paper examines developments prior to the Trial, involving the physiologist Andrew Conway Ivy and an inter-Allied Scientific Commission on Medical War Crimes. The paper traces the formulation of the concept of a medical war crime by the physiologist John West Thompson, as part of the background to Ivy's code on human experiments of 1 August 1946. It evaluates subsequent responses by the American Medical Association, and by other war crimes experts, notably Leo Alexander, who developed Ivy's conceptual framework. Ivy's interaction with the judges at Nuremberg alerted them to the importance of formulating ethical guidelines for clinical research.

Keywords: Nuremberg Trials, informed consent, Andrew Conway Ivy, Leo Alexander, John West Thompson, medical war crimes, human experiments

I

Informed consent has been an axiom of post-World War II clinical research and practice. At the close of the Nuremberg Medical Trial (NMT) on 19 August 1947, the presiding trial judge--Walter Beals--promulgated criteria for "permissible medical experiments"; yet although [End Page 37] he stressed 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," these criteria were not invoked by the judges in reaching their verdict. 1 The judges viewed the Nazi experiments as crimes against humanity and as war crimes: "These experiments were not the isolated and casual acts of individual doctors and researchers working solely on their own responsibility, but were the product of co-ordinated policy making and planning at high governmental, military and Nazi Party levels, conducted as an integral part of the total war effort." 2 The court sporadically engaged with ethical issues, although the prosecution lawyers insisted on the sufficiency of the war crimes charges. The question arises: Why did Judge Beals feel compelled to outline a set of ethical and moral principles governing clinical experiments, when the authority of the court was as a war crimes tribunal?

Eight of the twenty-three defendants were in fact acquitted, indicating how complex it was to discriminate between war crimes and politically sanctioned racial atrocities, on the one hand, and legitimate scientific inquiry, on the other. Moreover, the prosecution was confronted by a broad range of human experiments, varying greatly in scientific sophistication--from the crude wounding of limbs, to comparative vaccine trials. The Nuremberg Code's ethical guidelines reaffirmed the legitimacy of clinical experiments, while providing certain safeguards for the experimental subject. The Code has been seen as having been formulated by the three judges in response to expert medical advisors for the prosecution, and to the courtroom interaction of witnesses (some experts, some victims) with the prosecution and defense lawyers who argued that the [End Page 38] German experiments were equivalent to coercive experiments in U.S. penitentiaries. 3 The Code was refined in later regulatory codes, providing legal safeguards for the patient and research subject. 4 Hitherto, trial transcripts and publications have formed the basis for discussions of the Code. However, by drawing on archival documentation of the involved medical experts and of the allied authorities concerned with medical war crimes, it is possible to gain insight into the position of medical research in the United States and Western Europe after the extensive wartime Allied collaboration on medical research projects. 5

I suggest here that the origins of the Nuremberg Code lie beyond the courtroom, and that the scheme of a regulatory code was conceived prior to the decision to hold a medical trial. The notion of ethical requirements for clinical research was already current during the preparatory period of interrogations. 6 The Trial itself requires location within the context of Allied evaluations of the scientific quality of German wartime science, notably by the British, French, and U.S. medical investigators forming the inter-Allied FIAT (= Field Information Agency, Technical). The highly publicized NMT drew on the work of an International Scientific Commission on Medical War Crimes (ISC), which derived directly from an initiative from the British element of FIAT. A basis for the principle of informed consent was outlined to the ISC by the U.S. physiologist Andrew Conway Ivy on 1 August 1946 (see Table 1). Ivy recommended voluntary consent, and that experimental subjects be "informed of the hazards, if any"; 7 his requirements raised informed consent as an issue, although the substance of the Code was to evolve substantially during the NMT. [End Page 39] [Begin Page 41]

II

Of all the diverse commentaries and codes since the seventeenth century concerning human experiments, the German regulations of 1931 regarding new therapies came to resonate at the NMT. 8 Fierce public controversies over patients as human guinea pigs had reached a high point with the BCG disaster at L√ƒ¬ľbeck in 1930, when 77 out of 256 children died due to contaminated vaccine. This had an impact on discussions that were already under way in the Reich Health Council on guidelines for human experiments, by introducing a distinction between therapeutic and nontherapeutic procedures. Christian Bonah has pointed out that what were at first intended as guidelines for researchers became a code regulating clinical therapy in hospitals. 9 The Reich Ministry of the Interior issued the "Regulations on New Therapy and Human Experimentation" on 28 February 1931. The provisions included a formulation of informed consent: "Innovative therapy may be carried out only after the subject or his legal representative has unambiguously consented to the procedure in the light of relevant information being provided in advance." 10 Whereas the Nuremberg Code was meant to eliminate abuses in research, the regulations of 1931 governed the introduction of new therapies.

After the war, leading German scientists asserted that they had adhered scrupulously to the 1931 regulations. On 30 November 1946 a group of German pharmacologists launched a preemptive strike just prior to the opening of the NMT, by declaring to Sir Henry Dale, the president of the Royal Society, that the German medical profession was under merciless legal attack. In order to prove that physicians behaved humanely and conscientiously, Eugen Rost of Heidelberg forwarded to Dale the text of the 1931 code on human experiments. Rost sent this at the suggestion of Wolfgang Heubner, a celebrated professor of pharmacology who had been appointed in Berlin in 1932; Heubner had been interned by the British in 1946, and was under suspicion as an advisor on seawater experiments. Rost asserted in a clumsy allusion to British liberties [End Page 41] that this "Magna Carta" of German physicians had been in force since 1931 and throughout the Nazi period. 11

Dale replied positively to Rost on 2 January 1947 that he understood "the desire of yourself and my other friends that British colleagues should understand the completeness with which general medical opinion in Germany would desire to repudiate, and to disassociate itself from, practices such as those for which certain German medical men now stand accused before international Courts of Enquiry." 12 Nevertheless, he held back from following Rost's request to publish the German experimental code. He was a member of the British Committee on Medical War Crimes, which had been convened in September 1946 to adjudicate on the ethics and scientific value of the German human experiments. The chairman, Lord Moran, insisted that there be no publications prior to the issue of a final report, and so Dale registered Rost's point without publicizing it. 13

That the 1931 regulations were legally binding until 1945 was denied at the Trial. By the time the physiologist Andrew Ivy discussed the 1931 guidelines in court on 13 June 1947, other formulations of consent had taken shape. 14

III

Allied physiologists took the view that German physicians were perpetrators of a special category of war crimes. While the concepts of "Medical War Crimes" (a concept introduced by the neurophysiologist John West Robertson Thompson in November 1945) or "Crimes of a Medical Nature" (Ivy's formulation of July 1946) were landmarks on the road to the medical trial, the condemnation of physicians as agents of a special category of human butchery can be traced to the protests of victims. In the spring of 1943 Polish political prisoners in the women's camp of Ravensbr√ƒ¬ľck protested that medical experiments on their deliberately [End Page 42] wounded legs violated their rights as prisoners who had resisted the German army of occupation. These self-styled experimental "rabbits" mounted an effective international protest, alerting the Allies to Nazi human experiments. 15 On 4 March 1945 Auschwitz prisoner physicians launched an international appeal that prisoners had been treated as experimental animals, and that the Allies and neutral states should bring to trial those responsible, so that such atrocities should not recur. 16 In June 1945 an impromptu "International Investigation-Office for Medical SS-Crimes in the German Concentration Camps, Dachau" agitated for prosecution of the perpetrators and compensation for the victims or their heirs. 17 These victims impressed Allied medical investigators with the need to collect evidence on medical atrocities for eventual prosecutions, and to provide ethical safeguards. Judge Beals prefaced his remarks on human experiments by observing that criminal medical experiments had been carried out on prisoners of war, Jews, and "asocial persons" on a large scale in Germany and the occupied countries. 18

The Allies did not agree on a policy concerning war criminals until the summer of 1945. As far as medicine was concerned, they were interested in evaluating what aspects of German wartime medical research could be strategically useful. Strategic medical "targets" for the medical investigators included German vaccine production, experiments on survival in hazardous conditions, and the chemical and biological warfare programs. Ivy commented: "As our troops advanced into Germany, a number of trained scientists accompanied the advanced patrols to obtain information that might be of assistance in completing the war against the Japanese." 19 The Combined Intelligence Operations Service (CIOS) had the mission to secure strategically useful knowledge. One of its investigators, neurologist Leo Alexander, documented criminal activities of SS [End Page 43] medical experiments at Dachau, and of euthanasia. Alexander was an American citizen with extensive clinical experience both in Boston and at Duke University; his postgraduate medical training in the neurological clinic of Karl Kleist in Frankfurt am Main gave him an insider's understanding of German medicine; and his Austrian-Jewish origins made him sensitive to the sufferings of victims. He incorporated the victims' protests into his CIOS reports to such effect that his investigations of German neuropsychiatry were presented as evidence at the International Military Tribunal, Nuremberg, on 7 February 1946. 20 They were also publicized in digest form for the American public: an article in Coronet (an Esquire publication) in April 1946 on "Murder for Research" drew attention to Alexander's evaluations of the Dachau freezing experiments, as well as the massive loss of life in typhus experiments. 21

IV

A turning point came when Thompson coined the concept of a medical war crime in November 1945. Thompson was an American, with an Edinburgh medical degree; he served with the Royal Canadian Air Force from 1942 after research experience at Freiburg, Madrid, Harvard, and Toronto. He led the medical investigations of the Scientific and Technical Branch of the British FIAT, which gathered information for economic and strategic purposes. Thompson initiated the scheme of commissioning reports from German scientists. He concluded from investigating experiments at German universities, clinics, and hospitals that human experimenters inflicted death or permanent wounding on a vast scale. In November 1945 he contacted American military and legal authorities concerning "medical war crimes," and in December 1945 he alerted the (British) War Office that "similar researches at other institutions throughout Germany would show that something like 90 per cent of the members of the medical profession at the highest level were involved in one way or another in work of this nature." 22 Thompson proposed holding a [End Page 44] legal medical conference with the Americans and the French, for he was convinced that inaction would condone the experiments, and that "there is equally a danger that these practices may continue in Germany or spread to other countries." 23 British officials doubted his estimate that medical war crimes were so widespread, but conceded that there should be a special medical trial for the worst offenders. With the backing of British war crimes lawyers, Thompson secured an inter-Allied meeting of war crimes investigators. On 15 May 1946, British, French, and U.S. representatives met at the former I.G. Farben offices of the Hoechst chemical manufacturers in Wiesbaden "to consider evidence bearing on the commission of war crimes by German scientists believed to be guilty of inhuman experimentation on living men and women." 24

The key issue at the FIAT meeting was "unethical experiments on living human beings": "Professor L√ƒ‚€įPINE [a bacteriologist from the Pasteur Institute] expressed the opinion that a pronouncement of moral condemnation of the unethical practice of German scientists should be made and that this should be done by the representatives of the scientific bodies of the four Powers"; the British chairman called for "a meeting at which the practice of this criminal activity could publicly be condemned by representatives of science from all countries." 25 The involved scientists endorsed the scheme of formulating an international set of guidelines on human experiments.

On 20 May 1946 Sydney Smith (professor of pathology at Edinburgh and advisor to the War Office) reflected on evidence presented at the FIAT meeting: "I am of the opinion that many experiments have been carried out on human beings without their consent, that the experiments show, as far as our information goes, inadequate planning, crudity of technique, gross indifference to the value of human life and callous disregard of human suffering." 26 Smith supported the convening of an Allied commission of medical experts. His comments indicate the outrage of investigating scientists that the German human experiments violated the ethical requirement of consent of the experimental subject. [End Page 45]

British war crimes investigators had segregated captured German physicians involved in the Ravensbr√ƒ¬ľck experiments for a special trial. The forensic pathologist attached to the war crimes unit, Major Keith Mant, broadened the scope of the inquiry from the killing of British SOE agents to the criminality of medicine in Ravensbr√ƒ¬ľck. By mid-1946 he was collaborating closely with Thompson, and Ivy commended their "excellent records" on German medical intelligence. 27 Between March and August 1946 Mant directed intensive forensic investigations, interviewed victims, interrogated captured physicians, and supported ethical discussions. The British lawyer in charge, A. C. Somerhough, explained that "a case involving gross breaches of medical ethics should be given all the publicity available so as to engender the interest of other powers in cases of a similar nature." 28

It was in response to the FIAT meeting on medical war crimes that on 17 May 1946 the American Medical Association (AMA) nominated Ivy to the next such conference. The secretary of state for war endorsed the recommendation, and assigned to Ivy additional tasks of evaluating Nazi scientific research. 29 Ivy's investigations fitted in with his deeply held moral and scientific convictions. Between 1925 and 1946 he was professor of physiology and pharmacology at Northwestern University, where he described his laboratory as "the largest and best equipped in the world." 30 He was director of the Naval Medical Research Institute between 1942 and 1945, and supervised tests on making seawater drinkable (one of the areas under contention at the NMT). 31 Ivy highlighted his own ethical conduct: "In order to get the corpsmen interested in serving or 'volunteering' as 'assistants' or subjects in the earlier experiments at the Institute, I served as a subject in a trial experiment. This was true of the dilute sea water tests, the Goetz water tests and straight sea water test. This, however, has always been my policy in laboratory work." 32 Serving as an experimental subject was a rite of passage: John Fulton congratulated [End Page 46] Ivy on having been "officially decompressed" and invited him to serve on the Committee on Aviation Medicine of the National Research Council. 33 Alexander similarly took part in clinical experiments "both as experimental subject and as experimenter," and Thompson was a subject in decompression chamber experiments at some personal risk. 34

Ivy saw matters, firstly, from the point of view of a scientist, seeking a permissive ethical framework for research; secondly, as a patriot engaged in strategic research; thirdly, as a medical educator concerned with inculcating sound morals in medical students and physicians; and fourthly, as a physician seeking scientifically based therapies to alleviate human suffering. His moral mission was apparent in his activities as a public speaker in favor of temperance and Christian conduct. His distinctive combination of science and ethics made Ivy a fitting choice as AMA representative to the inter-Allied meetings on medical war crimes, despite his lack of acquaintance with German science; his later support for a cancer therapy based on a natural substance, so that invasive surgery could be avoided, brought his sense of an obligation to advance therapy into conflict with professional authority, leaving him marginalized, discredited, and ultimately condemned by the AMA.

In 1946 Anton Julius ("Ajax") Carlson, Ivy's mentor at the University of Chicago, was taking steps to found the National Society for Medical Research. If physiologists had managed the delicate operation of establishing the legitimate use of animals in medical research, could this also be achieved for humans? 35 Ivy's successive formulations of ethical guidelines stressed that the goal of animal experimentation was to protect humans from harm: his embryonic code of 1 August 1946 enshrined animal experiments as absolutely necessary for protecting human life, and on 28 November 1947 he addressed the Central Association of [End Page 47] Science and Mathematics Teachers on the need for physiologists and physicians to oppose antivivisectionists so as to safeguard medical progress in the interests of human welfare. 36

The demand for ethically based clinical research found support among the leaders of French medical science. Some were victims of the concentration camps; others had soldiered on as research scientists under German occupation. On 19 June 1946 a French governmental decree appointed four physicians, a biologist, and the director of the war crimes investigations to form a Commission on Medical Crimes. As a follow-up to the FIAT meeting, they convened an Allied conference at the Pasteur Institute. The location had a symbolic significance: now the heirs of Pasteur would sit in justice over the misdeeds perpetrated in the tradition of Robert Koch as an icon of German medicine. The presence of an ethical tribunal enhanced the Institute's reputation as a benefactor of mankind during postwar reconstruction, for it had endured a difficult war, faced with the choice between collaboration and resistance. 37 Given the abuses of German bacteriology, a contrast could be drawn with the concentration camp experiments involving the Robert Koch Institute of bacteriology in Berlin. The minutes of the meeting underlined the significance of the location: "The Chairman [John Thompson], voicing the feeling of all members, expressed his gratitude to the Pasteur Institute for its hospitality in supplying accommodation for the meeting and expressed his gratitude for the deep honour done to each member in allowing him to meet in a room formerly and frequently used by Louis Pasteur." 38

The bacteriologist Ren√ƒ¬© Legroux headed the French scientific commission, passing information to the UN War Crimes Commission and taking particular interest in German vaccine experiments in Strasbourg. 39 [End Page 48] Scientists dominated both the French and inter-Allied meetings: the process of peer review would judge the Nazi research according to the procedures of science.

As a preliminary to the Paris meeting, Ivy met with Thompson on 29 July 1946 at the FIAT offices requisitioned from Hoechst in Wiesbaden: "I found that Dr. Thompson held views very similar to those I had formulated relative to the problem of war crimes of a medical nature." 40 It is likely that Ivy drafted his code after this encounter with the perceptive Thompson, who was conducting a campaign to establish ethical foundations for clinical research. Somewhat of a bibliophile in the tradition of Oslerian medical humanism, and appalled at the revelations of medical abuses in the concentration camp of Bergen-Belsen, Thompson was deeply perturbed by the German scientific atrocities. The meeting at the Pasteur Institute on 31 July-1 August 1946 pursued the issue of experimentation without consent: "It was agreed that there is already considerable indication that the experimental use of human beings without the subjects' consent and with complete disregard of their human rights was carried out on nationals of various nations, under the Nazi regime." 41

Ivy's participation at this meeting as "Special Consultant, Secretary of War, War Crimes Branch (US)" indicated increasing U.S. interest in violations of medical ethics.

Doctor Ivy warned that unless appropriate care is taken the publicity associated with the trial of the experimenters in question, and also the publicity which is bound to be attached to the official report of this meeting, may so stir public opinion against the use of humans in any experimental manner whatsoever that a hindrance will therefore result to the progress of science. . . . In addition he cautioned that the knowledge that human beings were extensively used in experimental work may entice unqualified people in other countries to engage on human experimentation. 42 [End Page 49]

Ivy's demarcation between legitimate clinical research and criminal abuses stressed that animal research was a fundamental prerequisite for clinical research, and that

some broad principles should be formulated by this meeting enunciating the criteria for the use of humans as subjects in experimental work. 43

Ivy's draft code contained the germ of the principle of providing experimental subjects with information on hazards:

Outline of Principles and Rules of Experimentation on Human Subjects
I. Consent of the subject is required; i.e., only volunteers should be used.

(a) The volunteers before giving their consent, should be told of the hazards, if any.

(b) Insurance against an accident should be provided, if it is possible to secure it.

II. The experiment to be performed should be so designed and based on the results of animal experimentation, that the anticipated results will justify the performance of the experiment; that is, the experiment must be useful and be as such to yield results for the good of society.

III. The experiment should be conducted

(a) so as to avoid unnecessary physical and mental suffering and injury, and

(b) by scientifically qualified persons.

(c) The experiment should not be conducted if there is a prior reason to believe that death or disabling injury will occur. 44

The requirement that volunteers should be told of hazards before giving their consent represented an important step toward the principle of informed consent. Thus an embryonic formulation of the Nuremberg Code was tabled at the Pasteur Institute, before a decision to hold a dedicated medical trial.

An annotation on bacteriologist Pierre L√ƒ¬©pine's copy of the agenda indicated that it was intended to discuss Ivy's code more fully on 16 October 1946. The only U.S. delegate at the follow-up meeting was the Nuremberg prosecutor Alexander G. Hardy, who assured the Commission [End Page 50] that "the Americans were forming a Committee and that he was expecting to hear from Dr IVY. He, IVY, had been very much occupied as he has just been appointed to some very high post in the USA but it was expected that by the next meeting the American Committee would be in existence and possibly present." 45 The Commission initially served to inform the American war crimes investigators about medical atrocities, but it became increasingly irrelevant when, during September 1946, the British and U.S. authorities collaborated on preparations for a trial in Nuremberg of Nazi medical atrocities. Given that the trial was defined as dealing with "the principal doctors who engaged in medical experimentation on involuntary human beings," Ivy's draft code was fundamental in shaping the scope of the Nuremberg Medical Trial. 46 The task of revising his provisional code passed to those associated with the NMT.

Ivy's mission was in part to obtain scientific information from interned Germans, and in part to brief the U.S. war crimes lawyers. His recommendation that they deploy a physician-scientist "in interrogating witnesses and potential defendants, as in all medico-legal cases," led to the appointment of Alexander. 47 Ivy went from Paris to meet the legal staff of General Telford Taylor, the chief prosecutor at Nuremberg. Ivy later recollected:

The attorneys had a number of questions in mind, such as: Were the experiments necessary? Were they properly designed? Were the results of any value? Is it legal or ethical to experiment on human subjects? Since some of the victims were condemned prisoners, was it not proper to use such prisoners in experiments? Some of the attorneys knew we had performed a great number of experiments on ourselves and on volunteer human subjects during the war. . . . So the attorneys were somewhat confused regarding the ethical and legal aspects as well as the scientific aspects of the question. 48

At the conference with Telford Taylor on 6 August 1946, Ivy suggested that "caution should be exercised in the release of publicity on the medical trials so that it would not jeopardise ethical experimentation." 49 [End Page 51] Taylor introduced Ivy to John M. Anspacher, who was in charge of public relations for the International Military Tribunal at Nuremberg:

Mr Anspacher agreed that the publicity on the medical trials should be pointed so as to emphasize the difference between ethical and unethical experimentation. He suggested that it would be advisable for the A.M.A. and perhaps the B.M.A. to publish an article providing the rules for ethical experimentation as conducted by us during the war and condemning the Nazi practices. We then discussed with Messrs. McHaney and Hardy [Taylor's assistant prosecutors] various aspects of the medical crimes, including specific cases, the ethics of human experimentation, the legal aspects of euthanasia, and the probable arguments of the defense. 50

Ivy agreed to supply them "with written statements regarding the ethics and also a list of questions which should be used in questioning witnesses and potential defendants." 51 He drew up his account on 10 and 11 August 1946: it indicates that ethical discussions shaped the decision to mount a trial primarily focused on human experiments, rather than on other areas of Nazi medical killing. Ivy's aims for the interrogation of German scientists reveal a dual strategy of obtaining "as much scientific data as possible," and that of exercising caution "in the release of publicity on the medical trials so that it would not jeopardize ethical experimentation." In accordance with Anspacher's strategy, an American press release from Nuremberg on 19 November 1946 emphasized the "inhuman experimentation program" with "thousands of experiments" which violated "ethical rules for human experimentation." 52

On 1 November 1946 Telford Taylor cabled the War Department:

It is necessary that we have extensive paper on the history of medical experimentation on living human beings with particular emphasis on practice in U.S. Defendant Rose [a bacteriologist from the Robert Koch Institute] states that U.S. doctors have extensively experimented on inmates of penal institutions and asylums, especially with malaria. Any truth in this. If so give us full facts. Do not limit paper to answering this question. Suggest you contact A. C. Ivy, University of Illinois Medical School on this problem. Answer soonest. 53

Taylor's request and Rose's counterattack on the ethical probity of U.S. research spurred Ivy to find additional support for his code on human experiments. In his report of December 1946 to the Judicial [End Page 52] Council of the AMA, he submitted a set of rules, requiring that "before volunteering the subjects have been informed of the hazards, if any." 54 He elaborated criteria allowing the pursuit of experiments as "the method for doing good," 55 and argued that the Hippocratic precepts of benefiting the sick, not giving any deadly medicine, and confidentiality to the patient "cannot be maintained if experimentation on human subjects without their consent is condoned." 56 The references to Hippocratic duty to the individual patient, and the need to provide information, appear not to have found favor with the AMA.

The AMA responded by promulgating its own Principles of Medical Ethics. It has previously been assumed that these principles represented the views of Ivy. However, the AMA Principles demanded far less than Ivy's original formulation of consent, which was contingent on information regarding potential hazards. The AMA required:

1. The voluntary consent of the individual on whom the experiment must be performed must be obtained.
2. The danger of each experiment must be previously investigated by animal experimentation, and
3. The experiment must be performed under proper medical protection and management. 57

Appearing discreetly in small print and without comment in JAMA, a regime of discretionary controls by the physician replaced Ivy's postulates of informing the subject of the hazards, and the notion of the good of society; the requirement of avoiding suffering, injury, and disability was attenuated. Apart from his rudimentary and ill-defined notion of "voluntary consent," Ivy succeeded in securing approval for animal experiments as an absolute prerequisite for clinical research.

Initially, the British hoped that Thompson "should edit the final report of the international scientific commission, which would write up comment on and condemn the inhuman practices which are being discovered." 58 The idea was that an investigating commission should [End Page 53] consist of a British officer (the forensic pathologist Keith Mant), a French officer (Fran√ƒ¬ßois Bayle), and a U.S. officer (eventually, Leo Alexander). In order to facilitate the Medical Trial (and to replace a scheme for a Four-Power Trial of industrialists and financiers), the British passed a collection of German medical suspects over to U.S. custody. In October 1946 Prime Minister Clement Attlee appointed Lord Moran, Churchill's physician, to lead the delegation of British medical scientists to evaluate the German human medical experiments. 59 The Anglo-French attempts to launch an international commission on medical war crimes looked to the expert authority of a panel of scientists. Ivy hoped that such a conclave of scientists would be in a position to promulgate a code on permissible human experiments, and he continued to press for U.S. participation.

Not only Ivy, but also Alexander and Taylor supported an ethical evaluation of human experiments by the International Scientific Commission, whereas the State and War Departments declined to support any general evaluation. The War Department objected that there were no funds for publishing a report to inform the scientific and medical world about the Nazi misuse of human beings, and that "personnel now assisting in this medical trial cannot be used for such a purpose" not involved with the prosecution of war criminals. 60 On 17 December 1946 Secretary of War Robert P. Patterson sought advice from the State Department as to whether there should be a report "informing the scientific and medical world at large of the type of experimentation conducted by the Nazis, and (2) of condemning extralegally the misuses of human beings in alleged experiments of a medical nature." 61 Although Taylor and the U.S. government felt that such a task was more suited to UNESCO or the U.N., Ivy continued to press for U.S. membership in an international scientific commission or U.S. promulgation of a code of ethics. 62 By the spring of 1947 Ivy and Taylor accepted that they would have to work to [End Page 54] achieve promulgation of a code on legitimate experimentation within the parameters of the Trial.

The U.S. prosecutors at Nuremberg hoped that if they proved the authorization of human experiments by the SS--and they had Himmler's papers to hand--they would show that these were a clear-cut case of Nazi-inspired murder. The lawyers' view of medical experiments as hands-on murder meant that criteria had to be drawn up to distinguish legitimate experiments from criminal homicide. One tactic was to demonstrate that the murderers' motive was political. In fact, despite the publicity about the "SS doctors," only ten of the twenty-three defendants were SS members, and three of these were not medically qualified (Viktor Brack and Rudolf Brandt of the F√ƒ¬ľhrer's Chancellery, and Wolfram Sievers of the SS-Ahnenerbe research organization).

Medical scientists realized that too strong a denunciation of Nazi medicine might jeopardize their own position. With the Trial imminent, the War Department commissioned Ivy to spearhead an ethical strategy. The support of Morris Fishbein, the editor of JAMA, was enlisted: "Ivy will serve as observer expert witness at Medical Trial. Can come from opening of the Trial for at least two weeks. Will bring History of Medical Experimentation on Humans. Fishbein editorial to appear 23 Nov. Code of ethics being prepared for adoption 9 Dec. Will forward by TT if possible. Affidavits as to practice being prepared from leading centers of Med Research. Pub Health Office collecting material as to state standards." 63 Although the AMA nominated Ivy as medical advisor to the Nuremberg prosecution, he preferred the detached status of expert witness (he had similarly declined military rank during the war). The plan was for him to come to Nuremberg for just two weeks, armed with a History of Medical Experimentation on Humans, the JAMA editorial, and a revised code of ethics. 64

V

In line with Ivy's suggestion of 6 August 1946 that the prosecutors be reinforced by a physician-scientist, the neurologist Leo Alexander was appointed chief medical expert for the prosecution on ca. 7 November 1946. Having compiled CIOS intelligence reports on German aviation [End Page 55] experiments, sterilization, and euthanasia in 1945, Alexander moved the agenda toward Nazi sterilization and euthanasia. Alexander and Ivy realized that the Trial could turn into a trial of American medicine unless a more sophisticated strategy was pursued than that of the condemnation of human experiments as war crimes and murder. Alexander had similar qualms when he heard that he was to be the expert for the prosecution: "don't tell [Telford Taylor] that the indictment is sloppily drawn." 65 By 13 November he began to rescue the case by collecting evidence that human experiments on U.S. prisoners and the mentally ill were voluntary.

Ivy's later recollection of his motives indicates the primacy of securing agreement for experimental guidelines. In 1964, when congratulating Irving Ladimer, Roger Newman, and W. J. Curran, professor of legal medicine at Boston University, on their volume Clinical Investigation in Medicine, Ivy reminisced: "I accepted the invitation to serve at the Nuernberg trials only because I had in mind the objective of placing human beings may serve as subjects in a medical experiment, so that these conditions would become the international common law on the subject. Otherwise I would have had nothing to do with the nasty and obnoxious business. I believe in prevention, not a 'punitive cure.'" 66

Despite the rift between his original recommendations and the AMA's code, Ivy stressed that "the Principles and rules as set forth by the American Medical Association" corresponded with his recommendations, when he was cross-examined by Hardy:

Q. What was the basis on which the American Medical Association adopted those rules?

A. I submitted to them a report of certain experiments which had been performed on human subjects along with my conclusions as to what the principles of ethics should be for use of human beings as subjects in medical experiments. I asked the association to give me a statement regarding the principles of medical ethics and what the American Medical Association had to say regarding the use of human beings in medical experiments. 67 [End Page 56]

Ivy was unable to produce the AMA publication in question, relying on the defense's summary of the AMA's rules. The toned-down JAMA code was presented as generally corresponding to American practice. Ivy fudged the issue by invoking the Hippocratic oath, which he interpreted as endorsing an experimental approach to medicine while protecting the patient. The prosecution lawyers were still confident of securing wholesale conviction of the German experimenters by proving links to Himmler and the SS. While Taylor's prosecuting lawyers were convinced that the laws against murder and assault were sufficient to gain convictions, Ivy and Alexander sought to show a lapse from the Hippocratic principle of "do no harm" to patients. The defense countered that the Hippocratic corpus of writings was inherently confused and contradictory. 68

Jon Harkness has described how Ivy defended malaria experiments in the Illinois penitentiary as ethically correct in response to the critical Trial testimony of Werner Leibbrand. 69 The experiments were publicized in LIFE magazine on 4 June 1945, and were introduced as evidence by the defendant Karl Brandt. Werner Leibbrand was invited to speak to the court on "German medical ethics with respect to experimentation on animals and human beings." 70 His testimony that prison experiments were unethical provided Ivy with an opportunity for introducing his criteria for legitimate experimentation into the Trial proceedings. Ivy defended the science, legality, and ethics of the American malaria experiments on prisoners despite their dangers. 71

Ivy was not willing to concede that experimental medicine was inherently inhumane. Leibbrand was a psychiatrist and medical historian at the University of Erlangen (a university town adjacent to Nuremberg); when called as a witness for the prosecution on 27 January 1947, he denounced biologically based medical research for seeing the patient as a mere object. This shift to identifying ethical flaws in science rather than seeing science as corrupted by Nazism was unacceptable to Ivy. Leibbrand testified that American research was ethically dubious, because prisoners [End Page 57] were in a forced situation. The Trial had to tackle the conditions under which risky experimentation was ethically permissible. 72

Ivy argued that Hippocrates had established experimental science on an ethical basis. He delivered a commencement address titled "Basic Principles: The Significance of the Moral Philosophy of Medicine" to the University of Nebraska College of Medicine on 22 March 1947 (between his two sessions as expert witness at Nuremberg), in which he described Hippocratic medicine as laying down the basic principles of the scientific, technical, and moral philosophy of medicine. He stressed that the AMA's "Principles of Medical Ethics" were in harmony with the Hippocratic oath. By way of contrast, "the atrocities committed by a small group of Nazi SS-physicians" in forcing human beings to serve as experimental subjects arose from dedication to the state and politics: "There was no place for the ethics of medicine which teaches that the physician-patient relationship is a holy and individual matter." 73

Ivy developed his position in an address to high-school teachers given in November 1947: medicine was grounded in the Hippocratic method of experimental procedures, and the Hippocratic oath commanded respect and reverence for life. The individual physician's duty is to the welfare of the patient, and the profession "is to serve humanity by maintaining life and postponing death." 74 Ivy cited the atrocities "committed by a small group of Nazi-SS physicians"--he estimated these as variously numbering seventy, or one hundred, or (in the book Doctors of Infamy) two hundred. 75 The crimes arose from a disregard of the value of life. Science lacked freedom of discussion, and the profession was coerced by Nazi fanatics: "Truly, the only solution for the problem of the misuse of scientific discoveries is the development of a good society." 76

Ivy reiterated his aim of a code on human experimentation at a War Department meeting of 9 April 1947 to discuss possible U.S. participation in the International Scientific Commission on Medical War Crimes: [End Page 58]

Dr Ivy explained his reasons for believing that a report on Nazi illegal and unethical experimentation should be made by an international group of scientists under government sponsorship. He feels that the attitude of scientists towards the evidence collected for the medical trial of Nuremberg is somewhat different from that of the prosecutors. He is interested in an international code of ethics on experimentation on humans which would condemn Nazi practices and be a guide for the future. 77

In the event, as the former Secretary of War, Patterson secured a set of trial transcripts for the New York Academy of Medicine on the basis that "the location of this material with the New York Academy of Medicine will make it available to the entire medical profession in the United States and Canada." 78 Here Iago Galdston organized a commission of evaluation, consisting (with one exception) of fellows of the Academy (see Table 2). 79

Ivy was recalled as witness on 12 June 1947 because of his "expert standing as a physiologist and experimenter." 80 Prior to his departure, he addressed the Federation of State Medical Boards. He referred back to his Paris principles as demonstrating "the conditions under which human beings were used as experimental subjects in the U.S.A. during the War," 81 and, in remarks linking ethics to politics, he stressed the profession's duty to resist any form of totalitarianism, not least because it [End Page 59] showed that socialized medicine would lead to ethical violations. The prosecutor James McHaney, in his closing argument on 14 July 1947, restricted himself to Ivy's three research rules concerning consent without coercion and informing the subject of the hazards. Ivy's rules as formulated in July 1946 remained the basis for the prosecution's case. 82

VI

Leo Alexander increasingly shaped the U.S. Trial strategy, providing it with an encyclopedic scientific background and ethical, philosophical, and psychological substance. In contrast to Ivy's view of the Trial as a "nasty and obnoxious business," Alexander worked with intense dedication to understand the criminal motives of the defendants and to secure their conviction. He regularly briefed the prosecuting team of Taylor, McHaney, and Hardy. Alexander developed a complex set of interlocking principles that ensured that the Trial was "no mere murder trial." 83 Among the guidance notes was a memo of 23 December 1946, "Countering [End Page 60] the Defense that Germans Were Experimenting on Prisoners Condemned to Death," in which he concluded that experimental wards were a death mill from which few emerged alive. He showed that Himmler's concession of April 1942 that certain prisoners should be pardoned after undergoing a potentially lethal experiment was never acted on: "Our evidence is that they were picked at random, that none of them was asked whether he was willing, that none of them signed any written agreement. . . . That should explode the German claim that these experiments were voluntary, quite apart from the fact that a concentration camp was certainly no setting for anything voluntary." 84

Alexander realized that the legal basis of the Trial--the prosecution of war crimes as crimes against humanity--was too narrow. He coined the term thanatology to demonstrate the lethal aims of the experiments as a perversion of medicine. At the same time, he attempted to broaden the basis of the Trial by applying the genocide concept. The lawyer who coined the term genocide by 1944, Raphael Lemkin, pointed out that the annihilation of whole peoples involved such measures as the medical uses of poison gas. Alexander reworked the genocide concept, arguing that the experiments were designed not to sustain life but to investigate how to destroy it. He drew up a memo, sent to General Taylor on 5 December 1946, subtitled "Thanatology as a Scientific Technique of Genocide," in which he argued that "the German research therefore definitely constitutes an advance in destructive methodology"--as "killing methods for a criminal state," and as "an aggressive weapon of war." 85 The experiments were designed to develop the science of killing, for which Alexander coined the term ktenology. He redrafted the memo, substituting "ktenology" for "thanatology" so that its subtitle became "Ktenology as a Scientific Technique of Genocide." Alexander concluded:

The frightful body of new methods of killing . . . constitute a formidable body of new and dangerous knowledge, useful to criminals everywhere, and to a criminal state if another one is permitted to establish itself again, so as to constitute a new branch, a destructive perversion of medicine worthy of a new name, for which the term ktenology is herewith suggested. This ktenological [End Page 61] medicine supplied the technical methods for genocide, a policy of the German Third Reich which would not have been carried out without the active participation of its medical scientists. 86

There were two periods in which Alexander focused on experimental codes: between 3 and 7 December 1946, just prior to the Trial; and between 20 and 26 January 1947. On 3 December 1946 he outlined his paper on the proper conduct of human experiments. His logbook recorded:

Plan:
Ethical and non-ethical experimentation in human beings: the crucial experiment (Pettenkofer)--the scouting experiment--the model experiment with physico-chemical systems--the theoretic thinking through. In which way were the German experiments non-crucial experiments, inadequately prepared; therefore inaccurate and misleading (example: high altitude) and unnecessary (example: sea water). 87

On 6 December he again noted: "Worked on 'ethical and non-ethical experimentation in human beings'. . . . Dictated paper in the evening, after reading Walter Reed, etc." 88 Finally, on 7 December: "Completed ethical and non-ethical exp. on human beings." 89 This text outlined the conditions for "permissible experimentation by a doctor." As in Ivy's draft code of 31 July 1946, Alexander required consent, and voluntary participation of the experimental subject. While Ivy required the experiment to be useful, Alexander preferred a more generalized viewpoint, that the experiment should not be unnecessary; both concurred that the results should be for the good of society. This overlap suggests that Alexander took Ivy's report as a basis for his views. A reading of Walter Reed on yellow fever prompted Alexander to amplify the concept of consent, as based on proven understanding of the exact nature and consequences of the experiment. He considered that a physician or medical student was most likely to have the capacity for full understanding. The degree of risk was justified by the importance of the experiment, and the readiness of the experimenter to risk his own life. Overall, [End Page 62] Alexander produced a more rigorous set of requirements than either Ivy or the minimalist AMA code. 90

These criteria were used to highlight the negative features of the German experiments. Alexander submitted his paper on ktenology both to Taylor and to the ISC in January 1947. At the ISC meeting of 15 January 1947 the newly elected chairman, Lord Moran, signaled the Commission's ethical objectives: "a. To strengthen the stand against disregard for human life and for human rights. b. To aid in maintaining the public's confidence in ethical research and to this end lay down criteria for the justifiable use of human beings as experimental subjects." 91

Yet Moran was hostile to Alexander's endeavors, because the ethical initiative was by now firmly in the arena of the Nuremberg Medical Trial:

Doctor Alexander was called on by the President to present his report, which he did by presenting his thesis that the medical and associated scientific world in Germany was enticed by the Hitler regime to utilize its knowledge in developing methods for exterminating human beings. He pointed out that whatever the scientific advance as the result of the experimental work in question, it was primarily of a destructive nature and that running throughout all the experimental work, one could see a "fine red thread" of measures designed either to kill or sterilize. On the basis of data collected by Doctor Alexander at Nuremberg, he had prepared two papers for submission to the American medical press. 92

Moran pounced on Alexander for these publications, arguing that "the effective function of the Commission would be undermined by releases either to the medical or lay press before the final pronouncement made by the Commission itself." 93 Given that the United States was not a member of the Commission, Moran's attempt to exert authority was futile. He ignored the fact that Alexander had gone through the proper military channels to gain authorization for publication, and that informing the public could be seen as ethically desirable.

In mid-January 1947 Alexander returned to the issue of the rationales for human experiments and "enlightened consent": on 21 and 22 January he noted in his logbook that he had met Ivy to discuss the issue of [End Page 63] ktenology. This was the day before Ivy's return to Chicago, when a special press release announced that he left "with the recommendation that an international, legalized Code of ethics should be published on the use of human beings as experimental subjects. Dr Ivy made this recommendation after spending the past ten days reviewing the record of the current war crimes trial of 23 doctors and scientists accused of conducting medical experiments on inmates of concentration camps." 94 On 24 January Alexander recorded: "Sent off Ktenology article. Finished the additions to the article re ethical and unethical experimentation"; on the following day he "worked on Ethics article." 95 In an affidavit dated 25 January, Alexander outlined his six rules for permissible human experiments. 96 On 28 January he logged in further discussions when he outlined his six rules: "Evening: discussion with Mitscherlich, later with Wing Commander Thompson." 97 It would therefore seem that Alexander's crucial input to the Nuremberg Code occurred in the two weeks after the Paris meeting, and culminated in the affidavit of 25 January. The conversations with Ivy and Thompson are likely to have been formative.

Alexander's six rules for permissible experiments represented a change of format as they were now in the form of a prescriptive code. How is it that a later date, that of 15 April 1947, has been ascribed to the formulaic Code? The formulation was incorporated in Alexander's January papers on ktenology and ethics, but the military authorities approved these papers for circulation only in mid-March 1947, after checking his legal and historical evidence. 98 The six-point formulation of conditions for permissible experiments represented a substantial advance from the position of the AMA, which disregarded the requirement of informed consent. Alexander was in the Netherlands between 12 March and 14 April. His logbook entry for 15 April recorded that on return to [End Page 64] Nuremberg he immediately "worked on medical experimentation." 99 He submitted both memoranda to Taylor on 15 April 1947. Each one concludes with a formulation of the code in six sections, and the formulations are identical. These indicate that he had settled his views on the topic of an experimental code by 25 January 1947, which was then embedded in the discursive papers of mid-April. 100

Ivy and Alexander both claimed authorship of the eventual Code. Alexander stated in 1966:

In order to define conditions under which medical experimentation on human beings is ethically and legally permissible, I prepared a memorandum entitled, "Ethical and Non-Ethical Experimentation on Human Beings", which was submitted to the United States Chief of Council for War Crimes and the Court on April 15, 1947. With additions derived from Dr. Andrew C. Ivy's testimony of June 12, 13, and 14, 1947, this memorandum became the basis of the so-called Nuernberg Code incorporated in the judgment. 101

This memorandum represented Alexander's fullest statement of a sustained engagement with the problem since November 1946. Michael Grodin reasonably suggests that Alexander and Ivy consulted together to coordinate their testimony. 102 As Ivy later reflected: "The Judges and I were determined that something of preventative nature had to come out of the 'Trial of the Medical Atrocities.'" 103

Alexander's engaging with the evidence of the atrocities contributed much to the substance of the Code. As a neurologist with greater psychological understanding than Ivy, he defined voluntary consent more fully: 1. It required the absence of duress, and "sufficient disclosure on the part of the experimenter and sufficient understanding on the part of the experimental subject of the exact nature and consequences of the experiment for which he volunteers to permit an enlightened consent. A mentally ill patient should have the consent of next of kin or their legal [End Page 65] guardian, and where possible should give his own consent." His principles required, further, that

2. Experiments should be humanitarian with the ultimate aim to cure, treat or prevent illness, and not concerned with killing or sterilization.

3. No experiment is permissible when there is the probability that death or disabling injury of the experimental subject will occur.

4. A high degree of skill and care of the experimenting physician is required.

5. The degree of risk taken should never exceed that determined by the humanitarian importance of the problem. Ethically permissible to perform experiments involving significant risks only if not accessible by other means and if he is willing to risk his own life.

6. The experiment must be such as to yield results for the good of society and not be random and unnecessary in nature. 104

Finally, there was a move to protect the research subject. Alexander had included special provisions to protect mentally ill patients, requiring where possible the consent of the patient in addition to that of the next of kin or guardian, but this provision was not included in the eventual Code. Taylor attributed the Code to one of the judges, Harold Sebring, and it may well be that Sebring recognized the value of creating such a code, both as regards the Trial and as a broader ethical outcome. 105 The Trial protocols show that the judges intervened to seek clarification about experimental procedures. Judge Beals sent a steady stream of ethically related Trial materials to the JAMA editor, Fishbein. 106 Evelyne Shuster argues that the judges shifted the focus away from the physician to the research subject. She suggests that the requirement for informed consent was "new, comprehensive, and absolute." 107 Certainly, what was novel was the right to withdraw from the experiment; Ivy had required far less when he called for informing the subject of potential hazards. But the view that the Code "grew out of the trial itself" omits the formative preliminary period, and the crucial inter-Allied discussions. 108 While the [End Page 66] Code was not applied in sentencing, the judges followed Ivy in intending that it should prevent future abuses.

The key issues--what contact the judges had with the medical experts at the Trial, and the discussions between the judges--have yet to be resolved. Again, Ivy provided crucial information to Ladimer, Newman, and Curran:

I did not reveal my objective to anyone except Messers Haney [sic] and Hardy until January, 1947. And, at that time I was invited by a member of the Tribunal [late in January 1947] to have lunch with them. At luncheon the Judges indicated that the prosecution had not made a case since the defense was arguing that medical scientists had done to prisoners and "Conscientious objectors" in the U.S.A. the same thing and under the same conditions that the Nazi physicians had done to their prisoners. This opening was the first opportunity that I had to inform the Tribunal of my objective and the reasons for it. I also told them that I had outlined the rules for the use of prisoners at Stateville, Illinois, and that I had used and was using conscientious objectors. I was then asked by the Presiding Judge if I would return in June, 1947, as a rebuttal witness, since it was not proper at that stage of the Trial to give direct testimony. 109

While one might doubt whether it was foreseen that the Trial would last as long as June 1947, Ivy does provide a plausible explanation of how he nurtured the judicial interest in the Code. He concluded his letter:

The foregoing is a brief review of the origin and development of the Nuernberg Code. The Judges and I were determined that something of a preventative nature had to come out of the "Trial of the Medical Atrocities." Handling patients as though they had no sacred or inalienable rights, as individual[s], is a bad means which will negate the good end or reason for the existence of the medical profession in Society, namely to prolong life and alleviate suffering in so far as possible. 110

While it might be objected that Ivy's retrospective comments came when his own ethics were being heavily criticized because of his support for a natural cancer therapy, they can be seen to tally with NMT documentation. Although in March/April 1947 he failed in his attempt to persuade the War Department to support a scientific report on medical atrocities based on the Nuremberg evidence, he remained committed to his aim of a code as "a guide for the future": "He thinks that an international commission could finish its report within six months, that Dr Alexander, now at Nuremberg, could do the necessary 'leg work' by July [End Page 67] 1 and that thereafter an American committee of scientists could finish its work in this country." 111 Ivy remained convinced that scientists and prosecutors differed in their views of medical evidence.

Thompson initially considered that more might be achieved by invoking the authority of leading scientists. He conveyed his misgivings about the Nuremberg Medical Trial to the Canadian politician Lester Pearson, who was supporting him on his "special mission":

The intention of the ISC (WC) is to gather all evidence of German experimental work carried out in an unethical manner on human beings, and as representative scientific bodies, to

1. pass judgment on the value of the scientific results obtained,

2. condemn, in the name of science, the prosecution of such experiments, and finally,

3. lay down some definition of what may be termed a justifiable experiment where a human being is being used as a subject.

It will be realized that some or much of the data which is available will never appear in court when the experiments have been carried out by someone who is now dead or has not been apprehended; furthermore, legal authorities are not in a position to judge the validity of an experiment as scientists themselves are better able to do. And finally, their pronouncements will carry only a juridical condemnation by the scientific bodies which may have more influence in determining the future course of experimental work on human beings. This much is being written on this particular point since some lay people are known to have expressed an opinion that all has been taken care of by the trials in the American or British Zones, in which some doctors are being accused. This is entirely to have missed the purpose of the ISC (WC). 112

In the event, the British Office of the Judge Advocate General requested Thompson to attend the medical trial in Nuremberg, and a complex arrangement between the RCAF and the British retained him for work on medical war crimes. 113 [End Page 68]

Thompson continued to confer with Alexander and Ivy, conducted NMT interrogations, and in the event spent months at Nuremberg collecting evidence. Once the U.S. drive to promulgate an ethical code became clear, the British became concerned less with ethics than with demonstrating German scientific incompetence. Sydney Smith noted:

Visit to Germany, re War Crimes and Medicine. Moran International Committee. Great deal of information about atrocities on civilians. With medical experiments on Jews in concentration camps. With the amount of material at their disposal and their complete freedom from the restraints imposed by ordinary ethics quite apart from the stringent prohibitions on medical ethics a great deal of valuable information about human experiments on human beings might have been obtained. 114

The ISC was never to reconvene. Instead, the British focused on the scientific quality of the German human experiments. On 16 July 1947 Thompson began to send out the evidence for scientific evaluation of "the experimental work performed in concentration camps by the medical profession in Germany"; the experts were to evaluate such points as: "was the object of the experiment a reasonable one?"; what was "the contribution to the advancement of medical or scientific knowledge," i.e., "the scientific and medical value"; and "was it imperative to use human beings as subjects in order to obtain the answer to the question with which the experiment was designed to deal?" 115 While initiating expert evaluation of the Nuremberg Medical Trial documents by a panel of several British experts, Moran's lamentably terse report focused on scientific incompetence rather than ethics. 116

Alexander and Ivy frequently cited the Hippocratic notion of the physician's duty of care for a patient. Indeed, Hippocratic ideas (inherently opaque, given the problems of translation and of interpreting the semimythical Hippocrates) became lost within the political ideology of totalitarianism. Medical opposition to interference in the doctor-patient relationship meant that, in Ivy's words, "We must oppose any political theory which would regiment the profession under a totalitarian authority or insidiously strangle its independence." 117 An editorial in the British Medical Journal diagnosed the problem as political: "the surrender, in [End Page 69] fact, of the individual conscience to the mass mind of the totalitarian State." 118 Physicians referred to the abuses of Nazi medicine as a rallying cry against the socialization of medical services. The autonomy of science reflected a situation of physicians opposing central state planning and the welfare state. The scales of justice were heavily tilted by the weight of Cold War requirements for strategically relevant clinical research, and by professional defense of the status of the individual practitioner.

VII

It can be concluded that the Nuremberg Code arose from the concerns of Allied medical war crimes investigators as they encountered the survivors of the human experiments and gathered the records of medical atrocities in concentration camps and clinics. Thompson took a crucial initiative in convening an international committee of forensic pathologists and other medical and legal investigators. The ISC offered an alternative tribunal to a public trial--that of expert evaluation conducted in closed session. The debates on research provided the initial stimulus for the formulation of a code of experimental ethics.

The scheme for a code arose from Thompson's scientific branch of FIAT where he became concerned with medical war crimes. The first formulation of a code should be credited to Ivy, who insisted on the voluntary status of the experimental subject, and who subsequently convinced the prosecution and the judges of the necessity of regulatory principles. The elaboration of the Code was largely due to Alexander, who amplified the obligations of the medical experimenter, defined what constitutes consent, and insisted on humane aims. Finally, the judges recognized the rights of the experimental subject. Although it appeared that the Code at Nuremberg was generated by the judicial procedures, the criteria were in fact undergoing a process of constant reformulation from August 1946 until August 1947.

Ivy's contribution became confused with the subsequent saga of his defense of Krebiozen cancer therapy, and Ivy himself drew parallels between the lack of clinical freedom and the Nazi state. 119 In 1949 Ivy reflected that the Nazi medical crimes arose from a society "ruled by a [End Page 70] Government without ethics." 120 Indeed, he accepted that most German physicians remained ethical, whereas the abuses arose from the Nazi Party and the SS. Nazism resulted in an ethically poisoned German medicine, particularly due to compulsory sickness insurance and racial ideology. Ivy remained fixated on the possibility that the evils of bureaucratized and unethical Nazi science could recur. He fired off a missive to President Lyndon B. Johnson in 1965, indicating that U.S. government agencies were guilty of crimes against humanity by suppressing Krebiozen, for he considered that his clinical trials demonstrated its therapeutic benefits. He warned, "Must we wait until the image of the United States resembles that of Nazi Germany before we act?" 121 The lesson Ivy drew from Nuremberg was that it was necessary to sustain clinical freedom for the medical researcher.

While the Nuremberg Code was unveiled to the public as a coherent set of principles, the different interests in its origins can now be identified. The question remains, did the mission to legitimate clinical research render the Code too permissive in what it condoned, and too weak in the provision of safeguards for the patient?



Paul Weindling is Wellcome Trust Research Professor in the History of Medicine in the School of Humanities, Oxford Brookes University, Gipsy Lane Campus, Headington, Oxford OX3 0BP, U.K. (e-mail: pjweindling@brookes.ac.uk). His publications include Health, Race and German Politics between National Unification and Nazism (1989), and Epidemics and Genocide in Eastern Europe 1890-1945 (2000). He edited International Health Organisations and Movements 1918-1939 (1995), and co-edited the journal Social History of Medicine (1992-98). His research interests include international health organizations, medical refugees in Britain in the 1930s and 40s,

Notes

The research for this paper was carried out as part of a Wellcome Trust project on clinical abuses and the inter-Allied contributions to the Nuremberg Medical Trial. I am grateful to Professor Keith Mant, Dr. Saul Jarcho, and Dr. Alice Ricciardi von Platen for discussions of issues associated with the Trial. I am also grateful to Mrs. Cecily Grable for allowing generous access to Leo Alexander's papers and for discussing her father's work. I wish to express my thanks and appreciation to the archivists and librarians associated with the collections cited in the text for facilitating access, and for additional advice, insight, and assistance.

1. The Nuremberg Medical Trial, 1946/47: Transcripts, Material of the Prosecution and Defense, Related Documents. English ed., on behalf of the Stiftung f√ƒ¬ľr Sozialgeschichte des 20. Jahrhunderts, ed. Klaus D√ƒ¬∂rner, Angelika Ebbinghaus, and Karsten Linne, in cooperation with Karl Heinz Roth and Paul Weindling (Munich: Saur, 1999), microfiche ed., fiche 262, frame 23 (hereafter NMT).

2. Ibid. See also Michael Marrus, "The Nuremberg Doctors' Trial in Historical Context," Bull. Hist. Med., 1999, 73: 106-23, on p. 110; Alexander Mitscherlich and Fred Mielke, Medizin ohne Menschlichkeit: Dokumente des N√ƒ¬ľrnberger √ƒ‚€žrzteprozesses (Frankfurt am Main: S. Fischer, 1960); Alice Platen-Hallermund, Die T√ƒ¬∂tung Geisteskranker in Deutschland: Aus der deutschen √ƒ‚€žrzte-Kommission beim amerikanischen Milit√ƒ¬§rgericht (Frankfurt: Verlag der Frankfurter Hefte, 1948); Fran√ƒ¬ßois Bayle, Croix gam√ƒ¬©e contre caduc√ƒ¬©e: Les exp√ƒ¬©riences humaines en Allemagne pendant la deuxi√ƒ¬®me guerre mondiale (Neustadt: Imprimerie Nationale, 1950). More recent literature includes J√ƒ¬ľrgen Peter, Der N√ƒ¬ľrnberger √ƒ‚€žrzteprozess in Spiegel seiner Aufarbeitung anhand der drei Dokumentensammlungen von Alexander Mitscherlich und Fred Mielke (Frankfurt am Main: Lit Verlag, 1994); Ulrich-Dieter Oppitz, Medizinverbrechen vor Gericht: Das Urteil im N√ƒ¬ľrnberger √ƒ‚€žrzteprozess gegen Karl Brandt und andere sowie aus dem Prozess gegen Generalfeldmarschall Milch (Erlangen: Palm & Enke, 1999). Other works are cited below.

3. Evelyne Shuster, "Fifty Years Later: The Significance of the Nuremberg Code," New England J. Med., 1997, 337: 1436-40.

4. Ruth R. Faden and Tom L. Beauchamp, A History and Theory of Informed Consent (New York: Oxford University Press, 1986), pp. 86-91; Jay Katz, "The Consent Principle of the Nuremberg Code: Its Significance Then and Now," in The Nazi Doctors and the Nuremberg Code, ed. George J. Annas and Michael A. Grodin (New York: Oxford University Press, 1992), pp. 227-39.

5. Paul Weindling, Epidemics and Genocide in Eastern Europe, 1890-1945 (Oxford: Oxford University Press, 2000).

6. Paul Weindling, "From International to Zonal Trials: The Origins of the Nuremberg Medical Trial," Holoc. Genoc. Stud., 2000, 14: 367-89.

7. A. C. Ivy, "Report on War Crimes of a Medical Nature Committed in Germany and Elsewhere on German Nationals and the Nationals of Occupied Countries by the Nazi Regime during World War II," p. 10, ref. J. C. 9218, AMA Archives, Chicago, Illinois. Direct access to inspect relevant AMA papers was declined.

8. Norman Howard-Jones, "Human Experimentation in Historical and Ethical Perspectives," in Human Experimentation and Medical Ethics: Proceedings of the XVth CIOMS Round Table Conference, Manila, 13-16 September 1981, ed. Zbigniew Bankowski and Howard-Jones (Geneva: Council for International Organization of Medical Sciences, 1982), pp. 453-95.

9. Christian Bonah, "Medizinische Forschung, die L√ƒ¬ľbecker Katastrophe und die Richtlinien," 19 November 1999, unpublished paper.

10. Michael A. Grodin, "Historical Origins of the Nuremberg Code," in Annas and Grodin, Nazi Doctors (n. 4), p. 130.

11. "That this has been the Magna Carta of German physicians since 1931, and has remained continuously in force since then" (Eugen Rost to Sir Henry Dale, 2 December 1946, Dale Papers 20.2.16, Royal Society, London). See also Paul Weindling, "'Tales from Nuremberg': The Survival of the Kaiser Wilhelm Institut f√ƒ¬ľr Anthropologie, and Allied Medical War Crimes Policy," in Geschichte der Kayser-Wilhelm-Gesellschaft im Nationalsozialismus. Bestandsaufnahme und Perspektiven der Forschung, ed. Doris Kaufmann (G√ƒ¬∂ttingen: Wallstein Verlag, 2000), pp. 621-38.

12. Dale to Rost, 2 January 1947, Dale Papers 20.2.17.

13. Dale to Moran, 6 February 1948, Dale Papers 20.2.18.

14. Grodin, "Historical Origins" (n. 10), pp. 128-32; NMT (n. 1), Ivy testimony of 13 June 1947, fiche 100, frames 9310-11, 9338-40.

15. Freya Klier, Die Kaninchen von Ravensbr√ƒ¬ľck: Medizinische Versuche an Frauen in der NS-Zeit (Munich: Knaur, 1994), pp. 216-21.

16. "Die H√ƒ¬§ftlings√ƒ¬§rzte von Auschwitz an die internationale √ƒ‚€“ffentlichkeit," 4 March 1945, Public Record Office (hereafter PRO) War Office files WO 309 (HQ BAOR: War Crimes Group files)/470, Kew, London.

17. Leo Alexander, The Treatment of Shock from Prolonged Exposure to Cold, Especially in Water, Combined Intelligence Objectives Subcommittee, Target Number 24, Medical CIOS G-2 Division, SHAEF rear, 10 July 1945, appendix 5, pp. 160-63, dated 11 June 1945; reprinted in International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946, (Nuremberg: [s.n.], 1947-49), Doc. 400 PS, 25: 536-607, 1947.

18. NMT (n. 1), fiche 262, frame 23.

19. A. C. Ivy, "Nazi War Crimes of a Medical Nature," p. 1, box 6, folder 12, A. C. Ivy Papers, 1799-1984, accession no. 8768, American Heritage Center, University of Wyoming, Laramie, Wyo. (hereafter Ivy Papers).

20. Michael Shevell, "Neurology's Witness to History: The Combined Intelligence Operative Sub-Committee Reports of Leo Alexander," Neurology, 1996, 47: 1096-1103; idem, "Neurology's Witness to History (Part 2): Leo Alexander's Contributions to the Nuremberg Code (1946-47)," Neurology, 1998, 50: 274-78; The Trial of German Major War Criminals by the International Military Tribunal Sitting at Nuremberg, Germany, 1945-1946 (London: HMSO, 1946), part 6, p. 131.

21. J. D. Ratcliff, "Murder for Research," Coronet, April 1946, pp. 10-14.

22. John Thompson to Capt. M. Marschuk, U. S. Judge Advocate's Office, 29 November 1945, PRO Foreign Office (n. 15), FO 1031/74; BWCE Nurnberg to War Office, 12 December 1945, PRO Foreign Office (n. 15), FO 937/165 Nazi Medical Experiments on Human Beings.

23. Ibid.

24. "Meeting held in FIAT Conference Room at HOECHST at 1030 hours on Wednesday 15th May 1946 to consider evidence bearing on the commission of war crimes by German scientists believed to be guilty of inhuman experimentation on living men and women," International Scientific Commission for the Investigation of Medical War Crimes (ISC): general correspondence, PRO WO 309/471 (n. 16).

25. Ibid., p. 5, PRO WO 309/471 (n. 16). See Fonds L√ƒ¬©pine, Archives de l'Institut Pasteur, Paris (hereafter AIP), for annotated minutes.

26. Sydney Smith, memo of 20 May 1946, box 9, folder 94, Sydney Smith papers, Royal College of Physicians of Edinburgh, Edinburgh, Scotland.

27. Ivy, "Outline of Itinerary," box 11, folder 4, book 3, RG 153/86-3-1, National Archives and Records Administration, Washington, D.C. (hereafter NARA).

28. Comments of A. C. Somerhough, 17 June 1946, PRO WO 309/471 (n. 16).

29. David Marcus, Memorandum for the Surgeon General, 16 May 1946, and Index Sheet, Marcus to SG [Surgeon General] and AMA nomination, 17 May 1946, box 10, book 1, RG 153 Records of the Judge Advocate General (Army)/86-1, NARA.

30. "Andrew Conway Ivy, M.D., Ph.D. An Oral History, Recorded by James David Boyle, M.D.," American Gastroenterological Association, 1969, Ivy Papers, box 101, American Heritage Center, University of Wyoming, Laramie, Wyo.

31. Ivy Papers (n. 19), box 86, folder 24.

32. A. C. Ivy, "Memorandum" (6 pp.), [ca. 1945], p. 6, Ivy Papers (n. 19), box 86, folder 25.

33. J. F. Fulton to A. C. Ivy, 2 June 1942, Ivy Papers (n. 19), box 86, folder 24.

34. Leo Alexander, Memorandum to: Telford Taylor, Subject: "Ethical and Non-Ethical Experimentation on Human Beings," 15 April 1947, box 1, file 9, Papers of Dr. Leo Alexander, Duke University Archives (Depository for Medical Center Records), 65th General Hospital Collection, Durham, N.C. (hereafter Alexander Papers). I am grateful to the Canadian National Archives, Ottawa, for providing access to Thompson's service record.

35. A. C. Ivy, annotations regarding Carlson's sense of responsibility to mankind, on A. J. Carlson, "The Necessity for Animal Experimentation," Bulletin for Medical Research, Special Memorial Issue, p. 17 (reprinted from Proceedings of the Annual Congress on Medical Education and Licensure, Chicago, February 11 and 12, 1946), Ivy Papers (n. 19), box 82, folder 23; Ivy to Carlson, 20 January 1950, A. J. Carlson Papers (Misc. Arch. Col.), University of Chicago, Dept. of Special Collections, Chicago, Ill.; Susan E. Lederer, Subjected to Science: Human Experimentation in America before the Second World War (Baltimore: Johns Hopkins University Press, 1995), pp. 117-19, 185.

36. A. C. Ivy, "Some Ethical Implications of Science," presented to the Central Association of Science and Mathematics Teachers, 28 November 1947, Ivy Papers (n. 19), box 6, folder 12.

37. Weindling, Epidemics and Genocide (n. 5), pp. 323-28.

38. Minutes of the Meeting to Discuss War Crimes of Medical Nature Executed in Germany under the Nazi Regime, 1 August 1946, PRO WO 309/471 (n. 16). Ivy often referred to Pasteur as a heroic genius of Napoleonic grandeur. See also A. C. Ivy, "The Message of Pasteur," 30 September 1954, pp. 3-4, Ivy Papers (n. 19), box 88, folder 2, for the move from animal to human experiments.

39. "Arr√ƒ¬™t√ƒ¬© du 19 Juin 1946 portant institution aupr√ƒ¬®s de la Pr√ƒ¬©sidence du Gouvernement (√ƒ‚€įtat-Major g√ƒ¬©n√ƒ¬©ral de la D√ƒ¬©fense Nationale) d'une commission d'investigation pour l'√ƒ¬©tude des crimes de guerre scientifique," Minutes of Meeting to Discuss War Crimes of Medical Nature Executed in Germany under the Nazi Regime, 31 July 1946, PRO WO 309/471 (n. 16).

40. A. C. Ivy, report, "Outline of Itinerary," 29 July 1946, p. 1, box 11, folder 4, book 3, NARA RG 153/86-3-1.

41. Minutes of Meeting to Discuss War Crimes (n. 39).

42. Ibid. The file also contains a set of edited draft minutes, indicating that Ivy's second caution was excluded from the final minutes. The minutes of 1 August 1946 note that the previous day's minutes were agreed "after the acceptance of certain alterations." See Paul Weindling, "√ƒ‚€žrzte als Richter: Internationale Reaktionen auf die Medizinverbrechen des N√ƒ¬ľrnberger √ƒ‚€žrzteprozesses in den Jahren 1946-1947," in Medizin und Ethik im Zeichen von Auschwitz: 50 Jahre N√ƒ¬ľrnberger √ƒ‚€žrzteprozess, ed. Claudia Wiesemann and Andreas Frewer (Erlangen: Palm & Enke, 1996), pp. 31-44.

43. Minutes of Meeting to Discuss War Crimes (n. 39).

44. Ibid., appendix B. Ivy restated these Principles in slightly modified form to the NMT on 13 June 1947. See NMT (n. 1), fiche 100, frames 9309-10, and fiche 101, frame 9437.

45. Second Meeting of the International Scientific Commission for the Investigation of Medical War Crimes, minutes dated 26 October 1946, PRO WO 309/471 (n. 16). From 1946 to 1953 Ivy was vice president of the University of Illinois in charge of the Chicago professional colleges.

46. McHaney to Mant, 30 September 1946, PRO WO 309/471 (n. 15). See also McHaney to Ivy, 30 September 1946, Archives de France BB/35/260, folder 4c.

47. Ivy, "Outline of Itinerary" (n. 40), p. 2.

48. A. C. Ivy, "Nazi War Crimes of a Medical Nature," Phi Lambda Kappa Quart., 1948, 22 (4): 5-12, quotation on pp. 5-6.

49. Ivy, "Outline of Itinerary" (n. 40), p. 2.

50. Ibid., pp.2-3.

51. Ibid., p. 3.

52. Special Release No. 63, 19 November [1946], Office of Chief of Counsel for War Crimes, Public Relations Division, box 9, book 2, NARA RG 153/86-2-2.

53. Taylor to War Dept., 1 November 1946, box 10, book 1, NARA RG 153/86-3-1.

54. Ivy, "Report on War Crimes" (n. 7), p. 10. Permission was not given for access to the AMA archives.

55. Ibid., p. 13.

56. Ibid.

57. "Report of Reference Committee on Miscellaneous Business," JAMA, 1946, 133: 35. The Committee's letter of response was cited by Ivy as court witness; see NMT (n. 1), fiche 100, frame 9310.

58. A. G. Somerhough to Judge Advocate General, "Proposed International Scientific Commission for the Investigation of War Crimes of a Scientific Nature," 6 August 1946, PRO WO 309/471 (n. 16).

59. The delegation consisted of Henry Dale, Sydney Smith (Edinburgh), and W. G. Barnard (Royal College of Physicians, London). For background, see Foreign Office, Scientific Results of German Medical Warcrimes: Report of an Enquiry by a Committee under the Chairmanship of Lord Moran, MC, MD (London: HMSO, 1949), p. 2.

60. Secretary of War to Secretary of State, 25 February 1947; also Gunn to Ivy 12 March 1947, and memorandum on Investigation of War Crimes of a Medical Nature, 25 February 1947, box 11, folder 4, book 3, NARA RG 153/86-3-1.

61. Patterson to Secretary of State, 17 December 1946, box 9, book 2, NARA RG 153/86-2-2. See also Secretary of War to Secretary of State, 23 February 1947, box 11, folder 4, book 3, RG 153/86-3-1; also box 10, folder 2, book 2, RG 153/86-3-1.

62. Ivy meeting of 9 April with War Department, box 11, folder 4, book 3, NARA RG 153/86-3-1.

63. War Dept. to USCC, Nuremberg, 16 November 1946, book 1, box 10, NARA RG 153/86-3-1. For the editorial, see "The Brutalities of Nazi Physicians," JAMA, 1946, 132: 714-15.

64. Coded message of 16 November 1946, book 1, box 10, NARA RG 153/86-3-1.

65. Leo Alexander, Logbook: Journey to Nuremberg as Consultant to the Secretary of War, Alexander Papers (n. 34), file 33, box 4. This is the original of the photocopied logbook in the Lifton Papers, New York Public Library, and in the Pross Papers, Bundesarchiv Koblenz Zsg. 154. The Pross copy is supplemented by an index compiled by Professor J√ƒ¬ľrgen Peiffer, T√ƒ¬ľbingen.

66. Ivy to Irving Ladimer, Roger W. Newman, and W. J. Curran, 23 March 1964, Ivy Papers (n. 19), folder 5, box 89. Ivy's wording is as in the original.

67. Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10: Nuernberg, October 1946 - April 1949 (Washington, D.C.: U.S. Government Printing Office, 1950), The Medical Case, 2: 82-83. Louis A. Buie to Fishbein, 16 February 1948, University of Chicago, Department of Special Collections, Morris Fishbein Papers, box 63, folder 6.

68. NMT (n. 1), fiche 101, frames 9421-23.

69. Jon M. Harkness, "Nuremberg and the Issue of Wartime Experiments on U.S. Prisoners: The Green Committee," JAMA, 1996, 276: 1672-75.

70. "Memorandum for Mr. McHaney. Subject: Questions for interrogation of Dr. Leibbrand. From: Dr. Alexander," 14 January 1947, Alexander Papers (n. 34), box 4, file 35.

71. NMT (n. 1), fiche 99, frames 9284-97 and fiche 101, frames 9404-12.

72. See Shuster, "Fifty Years Later" (n. 3), p. 1438.

73. A. C. Ivy, "Basic Principles: The Significance of the Moral Philosophy of Medicine," Commencement Address, University of Nebraska College of Medicine, 22 March 1947, Ivy Papers (n. 19), box 6, folder 8.

74. Ivy, "Some Ethical Implications of Science" (n. 36).

75. Ibid.; Alexander Mitscherlich and Fred Mielke, Doctors of Infamy (New York: H. Schuman, 1949); see statement in Ivy Papers (n. 19), box 6, folder 7.

76. A. C. Ivy, "Ethical Implications" (n. 36), p. 8; see also A. C. Ivy, "Does Science Have an Ethics?" Address to Roosevelt College, December 1951, Ivy Papers (n. 19), box 7, folder 8, p. 7.

77. International Scientific Commission: Note on meeting of 9 April 1947, box 11, folder 4, book 3, NARA RG 153/86-3-1; and see Belton O. Bryan to Ivy, 25 March 1947, ibid.

78. Robert P. Patterson to Office of Chief of Counsel Nuremberg, 19 November 1948, entry 159, NM 70, box 2, NARA RG 238. See also Patterson to T. Taylor, 19 November 1948; War Crimes Branch to Patterson, 13 December 1948; Minutes of Survey Committee on Disposal of Records of Nurnberg Trials, 14 December 1948, ibid., box 7.

79. New York Academy of Medicine (NYAM), Minutes 1946-49, 15 December 1947, 26 January 1948, on German Scientific and Medical Documents; NYAM Committee on Medical Information, Minutes and Reports to the Council 1948-52: 15 February 1948, for Committee members; 26 October 1949, for a reference to the final report on "Documents Used in Evidence in Trial of Nazi Physicians" (this report has not been located), NYAM Archives, New York, N.Y. See also Constance C. Smith, Guide to the Documents That Were Used as Evidence in the Trial of the Nazi Physicians: Case I of the United States Military Tribunal at Nuremberg (New York: New York Academy of Medicine, [1949]). I am grateful to Dr. Saul Jarcho for discussing his wartime military medical service, and for his recollections of captured German documents.

80. Leo Alexander, Memorandum to: Mr. McHaney. Subject: Advisor to the Court, 29 April 1947, Alexander Papers (n. 34), box 4, file 35.

81. Ivy, "Nazi War Crimes of a Medical Nature" (n. 19), p. 10. This passage is absent from the published version: Andrew C. Ivy, "Nazi War Crimes of a Medical Nature: Some Conclusions," JAMA, 1949, 139: 131-35. See also idem, "Nazi War Crimes of a Medical Nature," PLK Quart. (n. 48).

82. For Ivy as prosecution witness on 12-16 June, see NMT (n. 1), fiche 98, frame 9196, and fiche 101, frame 9494; Trials of War Criminals (n. 67), Medical Case, 1: 994-1004; 2: 82-86; on the case of United States v. Karl Brandt, see Jay Katz, Experimentation with Human Beings: The Authority of the Investigator, Subject, Professions, and State in the Human Experimentation Process (New York: Russell Sage Foundation, 1972), pp. 292-306.

83. Telford Taylor, Opening Address 9 December 1946, NMT (n. 1), fiche 3, frame 61.

84. Leo Alexander, Memorandum, "Countering the Defense that Germans Were Experimenting on Prisoners Condemned to Death," 23 December 1946, Alexander Papers (n. 34), box 4, file 34.

85. Leo Alexander, Memorandum to Taylor, McHaney, and Hardy, "The Fundamental Purpose and Meaning of the Experiments in Human Beings of which the Accused in Military Tribunal No. 1, Case No. 1 Have Been Indicted: Thanatology as a Scientific Technique of Genocide," Alexander Papers (n. 34), box 4, file 34. For reference to Lemkin and genocide, see Alexander, Logbook (n. 65), p. 1.

86. Leo Alexander, "One Aim of the German Vivisectionists: Ktenology as a Scientific Technique of Genocide," released for publication on 31 December 1946, and read before the International Scientific Commission (War Crimes) in Paris, France, on 15 January 1947, Alexander Papers (n. 34), box 1, file 12.

87. Alexander, Logbook (n. 65), p. 79.

88. Ibid., p. 105.

89. Ibid.

90. Leo Alexander, "Ethics of Human Experimentation," Psychiatric J. Univ. Ottawa, 1976, 1: 40-46. Alexander published abbreviated versions of the papers of 7 December 1946 and 15 April 1947, claiming these as the basis of the Nuremberg Code.

91. International Scientific Commission (War Crimes), 15 January 1947, Fonds L√ƒ¬©pine, AIP (n. 25).

92. Ibid.

93. Ibid.

94. Special Release no. 104, 23 January 1947, OCCW, Archives de France, BB/33/260, folder 4c.

95. Alexander, Logbook (n. 65), p. 174.

96. Leo Alexander, Affidavit, 25 January 1947, Alexander-Mitscherlich-Archiv, II 2/106.7, Archivzentrum der Stadt- und Universit√ƒ¬§tsbibliothek, Frankfurt-am-Main.

97. Alexander, Logbook (n. 65), p. 178.

98. Leo Alexander, "Ethical and Non-ethical Experimentation on Human Beings. General Ethical, Medico-Legal and Scientific Considerations in Connection with the Vivisectionists' Trials Before the Military Tribunal in Germany," stamped as approved for publication by Civil Affairs Division, War Crimes Branch, the Pentagon, 14 March 1947, and "no objection to publication on grounds of military security, War Department Public Relations Division 17 Mar 1947": box 10, book 3, NARA RG 153/86-3-1; and see Damon M. Gunn, to Lorwin, note of 14 March 1947, and Gunn to Alexander, 21 March 1947, ibid.

99. Alexander, Logbook (n. 65), p. 222.

100. Alexander, paper with a corrected title "Ethical and Non-Ethical Experimentation in [sic] Human Beings: General Ethical, Medico-Legal and Scientific Considerations in Connection with the Vivisectionists' Trial Before the Military Tribunal in Germany," Alexander Papers (n. 34), box 1, file 9, pp. 1-29.

101. Leo Alexander, "Limitations of Experimentation on Human Beings with Special Reference to Psychiatric Patients," Dis. Nerv. Syst., 1966, 27 (7) Suppl.: 61-65, quotation on p. 62. The memorandum was published in French translation in Bayle, Croix gam√ƒ¬©e (n. 2), pp. 1430-36. Although the date of the document is given as April, the text also coincides with the document approved on 14 March 1947.

102. Grodin, "Historical Origins" (n. 10), pp. 121-44.

103. Ivy to Ladimer, Newman, and Curran (n. 66).

104. Alexander, "Ethical and Non-Ethical Experimentation" (n. 34).

105. "Biomedical Ethics and the Shadow of Nazism," Hastings Center Rep., 1976, 6 (4, suppl.): 1-20, see especially p. 6.

106. Beals to Fishbein, 5 April, 29 May, and 30 June 1947; Fishbein to Beals, 5 April, 24 April, and 20 May 1947, Box 1, Walter Burges Beals Papers, Acc. No. 126, University of Washington, Seattle, Washington.

107. Shuster, "Fifty Years Later" (n. 3), p. 1437.

108. Ibid., p. 1437.

109. Ivy to Ladimer, Newman, and Curran (n. 66).

110. Ibid.

111. International Scientific Commission, War Department to Ivy, 25 March 1947, and meeting with Ivy, 9 April 1947, box 11, folder 4, book 3, NARA RG 153/86-3-1. Cf. Robert M. Springer, Secretary of State, 31 January 1947, on Appointment of American Medical Committee, in box 11, folder 4, book 3, NARA RG 153/86-3-1.

112. J. W. Thompson to Lester Pearson, Under Secretary of State for External Affairs, 16 November 1946, RG 25, box 5192, file 250 (S), part 1, National Archives of Canada, Ottawa.

113. Thompson to Pearson (n. 112), 10 December 1946. A biographical study of Thompson is in preparation.

114. Sydney Smith, MS 31 December 1956, box 9, folder 94, War Crimes, Sydney Smith Papers (n. 26).

115. J. W. R. Thompson, International Scientific Commission (W.C.), circular, 16 July 1947, PRO WO 309/471 (n. 16).

116. Foreign Office, Scientific Results (n. 59).

117. Ivy, "Nazi War Crimes" (n. 48), p. 17.

118. "Doctors on Trial," Brit. Med. J., 25 January 1947, p. 143.

119. Albert H. Stroupe, "The Nuremberg Code--An Ivy Contribution," Ivy Papers (n. 18), box 6, folder 12; Evelyne Shuster, "The Nuremberg Code: Hippocratic Ethics and Human Rights," Lancet, 1998, 351: 974-77.

120. A. C. Ivy, "The Meaning of Medical Ethics Learned and Emphasized at the Nurnberg Trials," 18 August 1949, Ivy Papers (n. 19), box 6, folder 10, p. 1.

121. Ivy to President Johnson, 19 January 1965, Ivy Papers (n. 19), box 90, folder 2. Ivy also opposed any relaxation of abortion laws, regarding abortion as akin to Nazi atrocities.

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