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.
I asked him if they were permissible if the State ordered them and he said that he would oppose that himself. I asked him if his point of view was not rather out of date and when a State that rules a great part of the earth considers it permissible to order such things, then perhaps the expert who is here to testify as a witness will arrive at a different conclusion and will correct his point of view, will admit that it is out of date. That is the very core of my defense of my client.
JUDGE SEBRING: I think it might be entirely proper if you produced other witnesses to show that the view entertained by this man on the witness stand is hopelessly out of date, as you say, but I am unable to see where, assuming that this document speaks of something that will be delineated as a medical experiment, the fact that this document speaks of such an experiment does not in and of itself serve to upset this man's point of view, he was in the hopeless minority in the matter and it would then be for the Tribunal to consider, from all of the evidence before it, what it considered a proper approach to the matter. But personally I fail to see the probative value of the inquiry as it is circumscribed by the text of the document which you have presented to him.
THE PRESIDENT: I am in entire accord with judge Sebring in failing to find any materiality in handing this document to the witness. Counsel may ask the witness if the witness is aware that other physicians of repute may hold other opinions, but this is not counsel's witness, nor is he an opposing witness. He is a witness called by another defendant. Counsel has the privilege of interrogating him --did interrogate him, asked him questions, and the witness answered him.
The witness is not subject to cross-examination or examination. He is not an adverse witness. We do not know of his position in regard to any other defendant. Counsel may ask the witness if the witness is aware that other physicians hold ideas which do not coincide with his.
DR. SERVATIUS: Mr. President, I assumed that since the witness has a different point of view than that of the defense, that he was an inimical witness and that I could put everything to him necessary to refute his point of view. Do I understand from the President that I should put no further questions to the witness?
THE PRESIDENT: No, it was not that. The witness was called by another defendant. You are now trying to cross-examine the witness as to questions which you yourself asked him. But counsel may ask the witness if the witness is aware that other physicians of repute in other communities, hold contrary ideas to his own.
BY DR. SERVATIUS:
Q. Witness, are you aware that other physicians do not share your opinion but consider such experiments permissible?
A. I believe without any further question that all doctors do not share my point of view; but if I may make a remark about this document, it is a question. The question is whether children with Meningocoele are to be operated on or not, but may I tell you that the lives of a part of these children could be saved.
JUDGE SEBRING: Witness, suppose you start over. I don't think the interpreter got that. Will you start over please.
A. It can be seen from this document indubitably that not all children which are born, suffering with Meningocoele, are to be subjected to these experiments that were planned, but.....
Q. Witness, where do you get that idea? They must be reported?
A. All are to be reported but it must be assumed as a matter of course that from those who report, a selection will be made as to which are to be experimented on, because if all children with Meningocoele are to report, then part of them certainly could not be considered for the experiment because they could be operated on and their lives could be saved. I must again point out that medicine Knows no eternal laws but simply pragmatic rules.
Q. Witness, then what does Meningocoele have to do with disturbances of the kidney?
A. That cannot be answered in general. I do not believe that the cases here were chosen because there was some connection between kidney disorder and meningocoele but because par of the children with meningocoele, namely those with a very serious infection, could only be expected to live a very short time. Others could survive.
DR. SERVATIUS: I have no further questions.
THE PRESIDENT: The Tribunal allowed the witness to discuss this document not with standing the Tribunal held that the document was not properly before the witness but that matter has been allowed and it is now in the record.
Any further questions of the witness on the part of defense counsel?
The Prosecution may cross-examine.
CR0SS*EXAMINATI0N BY MR. HARDY:
Q. Witness, I shall attempt to be brief and would appreciate your answering my questions briefly so that we may finish this afternoon. First of all, I want to discuss with you the events which took place at the meeting of the consulting physicians at the Military Medical academy in May 1943, more specifically the lecture given by Dr. Ding. Now was it possible for a listener, such as yourself, a man who was an expert on tropical medicine, to have readily ascertained after hearing Dr. Ding's lecture, that the experimental subjects used by Dr. Ding were inmates of a concentration camp?
A. I cannot remember now whether it only became apparent from the discussion.
Q. Well, now, you have stated that after the lecture a discussion took place and the discussion was opened by Professor Rose, is that correct? Did I understand you correctly that the first one to speak after Ding's lecture was completed was Professor Rose?
A. As far as I remember, Professor Rose was the first out to speak.
Q. And then first of all spoke on the subject itself, that is, typhus research, and then he proceeded to chastise Ding for the manner in which he carried out the experiments, is that correct.?
A. Yes.
Q. Well, now, will you kindly tell the Tribunal as well as you can remember, that is, verbatim or substantially, just what Dr. Rose said?
A. During my testimony this morning I endeavored to report his speech as well as I am in a position to do so today after a period of 4 years has elapsed.
Q. Well, will you kindly repeat it again for me, doctor?
A. Professor Rose said approximately that this was a case of experiments on human beings, that fatalities had occurred in that connection and that he considered that this was a very serious fundamental question since any such procedure cannot be brought in conformity with the tradition of research of immunity. He further said that no essential results had been achieved in the course of these experiments which could not also have been derived from epidemiological observations. For that reason he said he was of the opinion that one should maintain the traditions that one would maintain medical tradition, and therefore reject any such procedure.
Q. Nell, now before Rose-- pardon me. You and I alike know Professor Rose to be a very emotional person; did Professor Rose at the time of this observation become very excited?
A. I would say that he didn't get any more excited than was his custom occasionally during discussions.
Q. Well, now, did you gather or did Professor Rose say it outright, -- I will first ask you, did you gather that Rose considered that these experiments at Buchenwald were in he elicited these fatalities had occurred, to be just common murder?
A. I don't quite understand your question.
Q. Well, did Rose consider this just plain murder, these experiments at Buchenwald?
A. He didn't use that expression.
Q. Well, did you understand Rose to mean that?
A. That was to be concluded from his answer indirectly.
Q. Well, now were you aware of the fact that Professor Rose had himself visited Buchenwald prior to this meeting?
A. No.
Q. Well, do you know that Professor Rose visited Buchenwald with Professor Gildemeister and saw the operation in April 1942 a year before?
A. I am only hearing that now.
Q. And then a year later Rose strenuously objected at this meeting before the consulting physicians; and now is it clearer for you to understand why Rose objected, or was it clear from the lecture of Ding that experimental subjects used were human beings?
A. I don't understand your question.
Q. What I am trying, to make clear, Doctor, is whether or not you were able to ascertain at that meeting that concentration camp inmates were used in these experiments?
A. Yes.
Q. Now, is Rose had not visited Buchenwald one year prior to that time would he still have been able to ascertain from the lecture of Dr. Ding that experiments had been conducted on human beings in the concentration camp?
A. I cannot remember that, because I no longer know whether that clearly became apparent from the lecture.
Q. Well, then did the objection by Professor Rose come as a complete surprise?
A. Yes, for me.
Q. Well, now would you consider it possible that Professor Rose would later on have sent vaccines to Buchenwald to be tested there?
A. No.
Q. Then in summation you felt assured that Rose considered this work at Buchenwald to be more or less a scientific method of murder?
A. Yes
Q. Now, doctor, we have discussed here this morning yellow fever, malaria, typhus and other problems; I have one or two questions along those lines. Could you tell us as an expert how one could test the effectiveness of a tropical vaccine except by artificial infection subsequent to vaccination; by that I mean, how would it be possible for us to test here in Nurnberg a vaccine for yellow fever in as much as yellow fever is a tropical disease, without first artificially infecting the subject upon whom we are to test the efficacy of the vaccine? Do you understand what I mean, doctor?
A. I believe, yes. One could do that in the mentioned mice test.
Q. You would have to first artificially infect the mice, wouldn't you?
A. Not the mouse that is Used in the test alone, but mice would have to be available where yellow fever virus is present in their brain. This brain containing virus has been mixed with the serum of the human being to be examined, and then again injected into other mice.
Q. Well, now, doctor, if we were going to have experiments on human beings here in Nurnberg, we would have to first artificially infect the human beings with the yellow fever virus in order to test the efficacy of the vaccine, and bear in mind now, Doctor, I am not speaking of compatibility tests?
A. Do you mean compatibility tests?
Q. I mean to test the efficacy of the vaccine, not a compatibility test.
A. Efficacy,--not it is not necessary at all. One can ascertain the efficacy of the vaccine by using the mice test. Here is the case of yellow fever there is one excep tion.
only in the case of yellow fever can one decide by using the serum of a human being to what extent he would be immune.
Q. Well then, Doctor, in the case of yellow fever it is a fact, is it not, that tests on human beings are not necessary to determine the efficacy of a yellow fever vaccine?
A. Yes, that is the efficacy regarding the protection against yellow fever infection.
Q. And you, as a medical man, would not use human beings to test the efficacy of a yellow fever vaccine?
A. No, it is only necessary when examining the comparability in particular in view of the question of serum hepatitis; serum hepatitis only occurs in the case of human beings.
Q. Now you have stated here, Doctor, that infectious hepatitis is a rather disagreeable and serious complication, resulting from yellow fever vaccine infections. I did not quite understand, that. Would, you clarify that for me, please?
A. Every smallest disorder, which includes the so-called direct vaccination reactions or undesirable complications which are to be avoided by physicians whenever possible.
Q. Now, you say that this occurred in connection with the British and American vaccines. Did that also occur in connection with the German vaccine?
A. In the case of German yellow fever vaccines, you mean?
Q. Yes.
A. I know nothing about that.
Q. Well now, Dr. Haagen, Dr. Eugen Haagen, was the first one to develop a yellow fever strain here in Germany, was he not?
A. Haagen had worked in New York on yellow fever questions and as far as I know there was neither a virulent yellow fever strain nor an adulterated yellow fever strain available in any German laboratory.
Q. Well then, would you state that the vaccines which were used here would not contain that hepatitis condition which was created by the American and English vaccines?
A. That, one could not know before hand.