AFTERNOON SESSION The hearing reconvened at 1330 hours, 17 April 1947.)
THE MARSHAL: The Tribunal is again in session.
Professor DR. FELIX HOERING * Resumed
THE PRESIDENT: Any further examination of the witness by defense counsel?
BY DR. TIPP (For the Defendants Schroeder and BeckerFreyseng):
Q. Witness, this morning you mentioned a lecture which Professor Haagen delivered in 1943 at the Consulting Conference on Yellow Fever Vaccine. Did I understand you to say that neither directly nor indirectly was there any mention in this lecture of human being experiments which Professor Haagen carried out in this connection?
A. Yes you understood me correctly, that there was no mention of it in the lecture.
Q. Witness, do you know Professor Haagen well?
A. I met him only at this conference.
Q. But as an export you are familiar with his scientific reputation?
A. His scientific reputation as an expert in virus matters was generally known.
Q. And Haagen was generally considered an expert in this field of virus?
A. Yes.
Q. Now, let me ask you Professor, virus research presupposes detailed knowledge of all questions?
A. Yes, that is so. It requires many years in that field before one can be called an authority in that field.
Q. And the normal doctor with the regular physicians training would not have that special knowledge?
A. No, no more than he would have special knowledge about bacteriology in general.
Q. Therefore, it would have been quite impossible for a normally trained doctor to supervise specialized work in this field?
A. Only an expert could have done so.
Q. Thank you. Now, witness, I should like to discuss two documents with you. I show you Document Book 12 on Typhus Experimentation. May I ask you to turn once again to page 109. This is the same document that Dr. Fritz put to you this morning--page 109, written in pencil. This is the document NO-304, Exhibit 315, a letter by Or. Haagen to tne Inspectorate of the Medical Service. The letter is very brief-perhaps you could glance through it briefly, professor. Can you, is an expert, see in this letter anything indicating whether or not Haagen in this yellow fever vaccine production carried out any experiments on human beings, or what can you deduce from the letter?
A. There is mention here of animal cages bat no mention of human being experiments.
Q. Then you can deduce nothing from this letter about human being experiments. Now the next page of this document "Direction for use of the Yellow Fever Vaccine of the Hygienic Institute of Strasbourg University. This document was out in by the prosecution in connection with human being experiments which Haagen is alleged to have carried out. I don't know just what conclusions the prosecution draws from this document, but the connection in which it was submitted seems to indicate that the prosecution sees in this document proof of the experiments on human beings. Will you please tell us, professor, just what this document is.
A. These are the directions for use such as accompany any vaccines which are not generally known to physicians so that the physician will know how to carry out the vaccination.
Regarding those on whom the vaccinations was carried out, there is no mention in the document.
Q. I draw your attention to the last sentence of the last paragraph, I quote: "Any serious reactions especially manifestations of jaundice, Etc., with mention of operation number must be reported immediately to the Medical Inspectorate of the Air Force through official channels." Now, to whom is this directive directed?
A. This morning I mentioned the incidents that had arisen, through of serum hepatitis, and the mentioning of jaundice indicates that it was considered possible that that could arise here also. The persons here mentioned are those to be vaccinated.
Q. What I mean is who should apply to the Health Inspectorate of the Wehrmacht-that could only be a troop doctor?
A. Yes, that is so.
Q. Then I can summarise your testimony as follows: Those are directions for use for troop doctors when they vaccinate against yellow fever.
A. Yes.
Q. Thank you. Now, in the same document book please turn to page 120. This is document NO 130, prosecution exhibit 319. Let me quote from it briefly: "Oberstab-sartz Professor Dr. Haagen, consulting physician to the Air Fleet Physician Reich, Strasbourg, 4th August 1944. Suoject--'' That doesn't interest us. Heading, "Report on the successes with TAB Chol. vaccine." This document is not signed but it is clear that it originated with Dr. Haagen.
This letter also was submitted in connection with human being, experiments and I assume that the prosecution feels that this is a report on experiments on human beings which either Haagen himself or some other persons carried out with this TAB Chol, vaccine. The letter is three pages long. I shall not ask you to read the whole letter now and I shall spare the Tribunal the nuisance of reading it, but I shall cite a few sentences that are pertinent in the first third of the first page.
It begins as follows:
"The following TAB Chol. vaccines were used."
And then follows the numbers:
"It appears that no strong reactions were produced by Nos. 03, 05, 10 and 13. One unit reported 1-2 days absence from work as a result of 05, which would seem to indicate a stronger general reaction."
And in the last paragraph on this page:
"Nos. 06, 07, 08 resulted throughout in such strong reactions that their usability is questionable. No. 06: in one unit a loss of 1 day 5-7% on account of fever; in one unit 90% fever up to 38.5 C, and loss of 1-2 days; in one unit 90% very strong local and general reactions, fever 38.5 C, loss of 1-2 days. Only one unit reported good endurance, without particularly strong or numerous reactions."
Now I believe that is sufficient. From these few citations, witness, can you perhaps tell the Tribunal what this report is Haagen is describing, what actually is here being described?
A. This is a report on the tolerance for a newly manufactured type of vaccine against typhoid fever, not, typhus, paratyphus and cholera. Whenever a new vaccine is manufactured such reports must be colleged and to judge from the short citations that you read it must be one of there regular reports such as are always published when a newly manufactured vaccine is first used.
Q. You mean to say then, witness, that this is a collective report that is compiled from various single reports, is that correct?
A. That can be seen from the text where it is pointed out that individual units reported such and such. These reports were apparently collected and compiled and transmitted by the consulting physician.
Q. From whom did these individual reports come?
Q. They must have come from the troop physicians of the individual troop units.
Q. In other words, witness, this is not a report on experiments of human beings, but a report on vaccinations carried out on German soldiers with a new vaccine?
A. Not with a new vaccine, but with a newly manufactured batch of an old vaccine which was already in us.
Q. But it only submitted reports on vaccination within the framework of the German Wehrmacht?
A. Yes.
Thank you, I have no further questions.
DR. SERVATIUS: For Karl Brandt:
Q. Witness, you were in foreign countries for quite a while in training and in research, is that not so?
A. Yes.
Q. Consequently, you are in a position to express an opinion regarding the permissibility of experiments on human beings, and at any rate you must have formed some picture of that in connection with this trial?
A. I do not consider myself a first rate expert in this field because that requires particularly trained and experienced doctors and I am too young for that, and I have, of course, concerned myself with this question, particularly in connection with this trial, also.
Q. And your experiences in foreign countries have substantiated in general whatever opinions you hold and prove that such opinions are held elsewhere in the world?
A. I know from literature, particularly from foreign literature, a little about what is customary in this respect.
Q. Witness, do you consider experiments on human beings permissible or for research purposes without the voluntary permission of the subject?
A. Since I had a feeling that this question might of put to me I made a few notes on the subject. First of all, I should like to remark in this connection that this is a matter concerning professional medical ethics. In this very generally phrased question I can only emphasize a few sides of it. I should like first of all to emphasize it is the highest principle of the medical profession to serve life in a sense set forth in the Hippocratic oath, and a second important principle is the "nil nocere", to do no harm.
Q. First of all as to the question of the subject's consent, if the subject does not consent to be experimented on, is the experiment permissible?
A. In anticipation of my answer I should like to say something about the concept of experiments so that we will understand one another. For this concept is by no means clear precisely and to me there is always the danger that I may be misunderstood, because in the case of desperate illness one occasionally could take recourse to a means in order to heal the person which is not-
THE PRESIDENT: Did or did not the question which you propounded to the witness cover the case in which the patient himself was desperately ill and something might be necessary to be done on behalf of the patient himself, was that covered by your question?
INTERPRETER: He didn't hear the beginning of your question because the switch was wrong. Counsel did not hear the question because the switch was wrong.
THE PRESIDENT: Was there included in your question to the witness an instance of a person who was himself desperately ill and possibly something by way of a new line or a new thought in medicine or surgery might have to be followed in order to benefit that patient himself. Was that concept included in your question?
DR. SERVATIUS: No, I believe we do not have to go into that question.
Q. Witness, I ask you not to deliver a lecture on the subject. Perhaps later you will have an opportunity to go into it at greater length but not please answer the question as briefly as possible. Later you can go into it, as I said, at greater length.
Now please answer my question: Do you consider voluntary consent a necessary prerequisite for experiments on human beings?
A. Yes, but I should like to emphasize that despite the voluntary aspect, the subject not trained in medicine cannot anticipate all of the consequences and the responsibility lies basically with the physician.
Q. Then you would say the person has to consent?
A. Yes.
Q. Do you hold that to be necessary even if the experiment is painless?
A. Yes, if it is a scientific experiment, certainly.
Q. Do you consider the consent of the parents necessary if it is a matter of children on whom it can be expected that it would very shortly die?
A. In this case the consent of the parent is necessary.
Q. Do you know from the history of medicine that for research purposes that experiments are carried out on insane persons or incurably ill persons and on children who cannot be expected to live?
A. I know no such cases. I know only that where such things were done they could contribute to the healing of the patient.
Q I do not want to have this word experiment brought into association with the idea of healing. I want to keep those two concepts separate. Now I shall bring a few cases to your attention from Document Book III, which is Document KB 48 on page 106. There are quotations from a book from the 19th century entitled "A Doctor's Confessions" by W. Weressajew, a Russian doctor. The following cases are mentioned on page 137 in the text. This is page 107.
"Wetheim inoculated four paralytics and one idiot, the 32 year old SCH, with the cultures. In the case of the idiot SCH, a 'fairly purulent secretion was still found two months after the inoculation'."
Then follows the identification of where this occurred or where the citation is from: "The Gonococcus Weisser on the Culturing Plate and in pure Culture. Berlin. Clinical Weekly 1892."
It goes on to state: "The method Wertheim was tested by other scientists. Gebhard successfully inoculated human beings with these Wertheim cultures."
MR. HARDY: The Tribunal has ruled that presentation and discussion of any evidence relative to experiments which are not at issue in this case shall be delayed until later on during the trial and at such time all evidence of this nature will be at one time offered and then the Tribunal, at that time, will rule on its admissibility. Hence, consistent with the ruling of the Tribunal, I object to Dr. Servatius at this time offering any evidence of this nature or discussing it in as much as the Tribunal has saw fit to delay it until a future date.
DR. SERVATIUS: Mr. President, I am not asking you to admit this as a document in evidence now, but I am using it in the course of interrogating this witness to find out what his point of view is.
The purpose of this trial was outlined by General Taylor at the beginning as that of ascertaining in general that Barbaric methods were here being used for the first time in the case of the defendants in the dock and that offenses against principles of law of all countries of the world. In this Document Book of mine I have shown a few short but pregnant excerpts to prove the contrary.
I am simply putting this document to the witness to have his opinion of it and I ask permission to do so.
THE PRESIDENT: Submit the document to the Tribunal from which you were reading.
DR. SERVATIUS: Document Book III of which I said yesterday that I would bring up today, the same as the prosecution was mentioned yesterday.
MR. HARDY: Your Honor, in this connection the witness has already stated he doesn't know anything about matters in other countries.
THE PRESIDENT: Examining counsel propounded to the witness certain questions. The witness answered the questions. Counsel may now, if he desires, ask the witness if the witness is familiar with medical ethics in general, if he has studied that matter, and is familiar with general rules in connection with the governing of medical ethics in such cases.
DR. SERVATIUS: Do I understand that you mean I can put this passage to the witness?
THE PRESIDENT: No, not at this time. I simply outlined to counsel questions he might ask at this time. This other matter may be considered later on today.
BY DR. SERVATIUS:
Q Witness, you have occupied an influential position as a professor at Tuebingen. Do you think you are in a position to express an opinion on the ethical permissibility of experiments on human beings in this trial?
A I can't answer that question in such general terms. Apparently so many questions are being here debated. I could perhaps competently answer a few of them but not all of them.
Q Now let me put a precise question to you in reference to this passage. Do you think an experiment on an idiot is permissible.
A I should demand in this case also the consent of the person in question.
Q Would you consider it permissible if experiments on certain seriously ill persons or epileptics whose refusal to consent is to be considered, that experiments be carried out on them?
A No.
Q Do you think that experiments should be carried out on moribund children, for instance, providing these are children whose death can be counted on as certain unless something is done?
A I must ask a counter-question. Just what do you mean by moribund children on whom one could carry out experiments?
Q I have a quotation here that reads to the effect that experiments were carried out on moribund children and it says they lived for another ten days. There was purulent eye infection as a result. In other words, the children died but lived ten days longer.
A The general sense of the word moribund does not apply to children who lived another ten days. In such cases one must be very sure of all the danger in order to attempt an export opinion toward it. be know no laws in medicine but only rules.
Q Witness, if such experiments are carried out on children or sick persons, why aren't they carried out on healthy persons? Wouldn't one assume that these experiments are very dangerous?
A This, too, is a question which I cannot answer in such general terms.
Q Witness, if these experiments are carried out not on Nationals of one's own country but on foreigners, is that not proof that they are dangerous experiments?
A In medical professional ethics there can be no difference between citizens of one's own country and foreigners.
Q However, if it does happen, cannot one draw a deduction that it is something that would not be expected of a citizen of one's own country but a foreigner?
A That is a question of the psychology of the person who carries out the experiment and has nothing to do with the general question of medical ethics.
Q Do you think such experiments can be carried out for private research on people?
A This again is such a general question that I cannot answer it.
Q Then you say that you feel that a researcher if he feels it necessary can carry out experiments if he thinks it important?
A Of course, but it depends on whom and the question of consent plays a part here.
Q And how about on a person who does not consent?
A From the point of view of medical ethics I do not consider experiments on people who do not consent permissible.
Q Can such experiments be ordered in the interest of the State?
A I believe that has happened in the course of history. That I know. I personally would disapprove of that. I personally should always prefer to forego scientific progress rather than take such a responsibility upon myself.
Q Then you consider such experiments not permissible even when the State orders them?
A From the point of view of medical ethics - yes.
Q Then, Professor, you agree with the Prosecution that such experiments are a crime?
AAgain there are two things to be considered here. The one is the question of professional medical ethics and the other are the laws that may exist in the country in question for which the doctor is not responsible.
Q. Witness, if today such an experiment were ordered by the government, an experiment on human beings, then every doctor would have to oppose that?
A. I can say that I myself would not carry out the experiment and would prefer to run the danger of suffering personal harm. Moreover, that is an idea logical question and what is to be said from the point of view of medical ethics so far as I am concerned that I have already said here.
Q. Was that always your opinion, witness, or did you just arrive at it here now?
A. That has always been my opinion.
Q. Didn't you change this opinion during the course of time. Has it not been out-moded?
A. I hardly believe so.
Q. Now, witness, I should like to put another document to you. This is KB 93 and, for the purpose of identification, it will be KB Exhibit 29. I shall read the document to you:
"Copy.
"The president of the Northern-Rhine province M 632 - III- C III/3.
"Dusseldorf, June 29th, 1946.
"To the Presidents of the Governmental Districts in ?ix-la-Chapelle, Duesseldorf and Cologne.
"Subject: Medical Research Committee.
"Enclosed you will find the text and translation of writing of the Military Government of June 22, 1946 - NR/PH/2457.
"As I hear the Regional Research Department wants to make examinations about the functioning of the kidneys. I ask therefore the hospitals concerned, to make the reports.
As representative signed: Dr. Gurfoldt."
"Copy.
"Translation.
"Headquarters military Government north Rhine Region.
"Subject: Medical Research Committee "June 22, 1946.
"To the President of the Northern Rhine Province.
"1. Professor McCane and the members of his Medical Research Department want to be informed, if and when children are born in lying-in hones or women's wards in hospitals affected with Meningocoole or similar abnormalities, which will make it unlikely or impossible that the children will survive longer than a short time.
"2. Professor McCane and his department wish to make some experiments on those children, which will give them no sort of pains, but they feel not entitled to make these experiments on normal, healthy children. When the birth of those children comes to be known Professor McCane is to be informed at once by telephone, Wuppertal No. 36665.
signed: Signature for Deputy Regional Commissioner North Rhine Region (Lt. Col.
E.J.G. Wallace, RAMC).
"To the President of the Governmental District N G Ned 5OO B 907/46 "Cologne, July 9, 1946.
"To the Health Office at ............
"? send the copy with the request to inform the birthwards of the hospital is in your district.
by order:
signed Dr. Savels certified:
Klaster, Regierangs inspector".
Mr. HARDY: First of all, Your Honors, before I enter any formal objection, I would like to see the original of this document.
DR. SERVATIUS: I am not in position to submit the original. This is a copy that was sent to me. I am referring to article 20 of the new trial procedures according to which if I submit a copy I may insist that notice be taken of a document which has been issued by an allied government. This is such a document. This, namely, is a document on the part of the British military Government.
I ask, therefore, that notice be taken of it.
MR. HARDY: Your Honor, I request that I be allowed to see the certification of authenticity of this document by some one of the members if the military Government. That is, authenticity of the copy of this document.
DR. SERVATIUS: In article 20, Mr. President, it simply says that a copy has to be submitted but not a certified copy, and it is not possible to me to submit that about an official document because I can't get my hands on it. I have only a copy and have every reason to believe that it is authentic. I asked the military Government in Cologne to send me a copy -- and I suppose they will send me copy soon, but I cannot submit it yet. The telephone number of the doctor is here. I suppose the whole thing can be checked on.
MR. HARDY: If he didn't receive the copy from the Military Government, where did he receive it from? He must have received it from someone.
MR PRESIDENT: The document offered in this situation should have some justification backing of it. Of course, the document is not now being offered in evidence, merely being marked for identification.
MR. HARDY: Well, Your Honor, in order to make a document for identification I should think it would logically follow that you would have to establish that it is a document, and this has not been established as a document.
JUDGE SEBRING: Mr. Hardy, will you hand that thing up here so we can layout it please?
Mr. HARDY: This is just the copy I have, Your Honor.
(Document is handed to Tribunal).
JUDGE SEBRIRG: Dr. serv?tius, will you say, for the benefit of the Tribunal, where, and how, and under what circumstances the text matter of this paper, a copy of which you have exhibited to the Tribunal, was obtained?
DR. SERVATIUS: During my information trip to Cologne, which is my native town, I was told that this directive had been issued, and it was read to me over the telephone, Thereupon .....
JUDGE SEBRING: Issued by whom?
DR. SERVATIUS: Issued by the British Military Government and transmitted by the Ober-president to him regional presidents, who direct that reports have to be made by phone. Thereupon, I visited the health office of the City of Cologne and asked them to tell me something about it; but I couldn't speak to the gentleman in question, so I wrote that they would please communicate it to me. Then, my information center sent me this copy and I have now submitted it because I have no doubt of its authenticity. I also assured myself that such directives had been sent to other institutes so I believed I could rely on it.
JUDGE SEBRING: You made inquiry by letter?
DR. SERVATIUS: Yes.
JUDGE SEBRING: To whom?
DR. SERVATIUS: To the municipal health office in Cologne which is competent for this, but I have received no answer. I could name as a witness to this the Ober-Modizinalrat Dr. Sabels who signed this thing.
JUDGE SEBRING: You made inquiry by letter?
DR. SERVATIUS: Yes.
JUDGE SEBRING: You have not as yet received a copy or you have not yet received a reply to that letter?
DR. SERVATIUS: Not yet, no.
JUDGE SEBRING: I assume that the letter was making inquiry concerning the subject matter or text matter of this document. Is that correct?
DR. SERVATIUS: Yes, I asked about it and requested a copy so that I could submit it to tire Tribunal.
JUDGE SEBRING: You did not receive a reply to your letter and consequently did not receive the copy of the document you requested?
DR. SERVATIUS: No, I do not have an official copy. I simply have the great conviction that this is a true document.
JUDGE SEBRING: Then, if you did not receive this document or its contents from the office, I don't quite understand where it did come from.
DR. SERVATIUS: I received it from a person who is very close to my client. I should prefer not to mention the name. I believe this comes within my professional obligation to secrecy.
JUDGE SEBRING: And it came to you as being an authentic copy?
DR. SERVATIUS: Yes.
JUDGE SEBRING: Of a document which had been duly issued? Is that right
DR. SERVATIUS: Yes, and thereafter I telephoned to another office that I know, and corroborated the fact that they also had received a copy of this same directive.
JUDGE SEBRING: Now then, what is your purpose in directing its context to this witness?
DR. SERVATIUS: I want to show this to the witness to hear from him, as a representative doctor of present day Germany, how such experiments are evaluated today. It is my point of view that experiments as are here ordered are permissible, and I have ascertained that the witness has the point of view represented by the prosecution, and I submit it to support my contention that such experiments are permissible if the state orders them.
JUDGE SEBRING: What do you understand this experiment to be, Dr. Servatius?
DR. SERVATIUS: I suppose that these are experiments that are carried out without the consent of the person concerned. That they are dangerous because no one it told about them, but, on the other hand, experiments that are necessary. It is my further intention to prove that euthanasia should be practiced on children who are born with such diseases and cysts because euthanasia is certainly an easy death, where as here, in my opinion, the children do not suffer an easy death after the experiment.
Thus, all the directives on the part of the Reich Committee for the Investigation of Hereditary Diseases should be considered permissible.
Mr. Hardy: Your Honor, if the Tribunal sees fit to accept this as an authentic document, then I object to the admissibility of the document inasmuch as it has no bearing in this case; it is immaterial; furthermore, the contents of the document is not at issue here and this does not state whether or not permission of the parents or guardian of these children to be experimented upon will be obtained. Furthermore, this is an expression of intention and there isn't any evidence of an overt act to substantiate tne document.
JUDGE SERBRING: Dr. Servatius, if you are of the view that this witness entertains some ethical views concerning the extent to which human experiments may be conducted, if to any extent at all, it would appear to me that having heard his statement on the matter you might propound a hypothetical question to him as to whether or not he is of the view that experiments concerning the functioning of the kidneys to be carried out on certain abnormal children which will give them no sort of pain, is, in his opinion, within the limits of ethical consideration of the complex involved. I think you might be able to propound to him perhaps a selected range of hypothetical questions which would probe the witness for his views of what, in him opinion, would come within or without the limits of what he considers to be an ethical approach to the concept of experimentation. It would seem to me that that could be done without any reference whatever to this document and that it would be a proper source of inquiry.
DR. SERVATIUS: The hypothetical questions I have already put to the witness--whether he considers experiments permissible if they are painless, whether they should be carried out on children without the consent of their parents--he rejected.