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1 23
Wiener klinische Wochenschrift
The Central European Journal of
Medicine
ISSN 0043-5325
Volume 130
Supplement 3
Wien Klin Wochenschr (2018)
130:159-253
DOI 10.1007/s00508-018-1343-y
Medical Ethics in the 70 Years after the
Nuremberg Code, 1947 to the Present
Herwig Czech, Christiane Druml & Paul
Weindling
1 23
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Wien Klin Wochenschr (2018) 130 :S159–S253
https:// doi.org/ 10.1007/ s00508- 018- 1343-y
Online publiziert: 8 June 2018
© The Author(s) 2018
wiener
klinische
wochenschrift
The Central European Journal of Medicine
130. Jahrgang 2018, Supplement 3
Medical Ethics in the 70 Years after the Nuremberg Code,
1947 to the Present
International Conference at the Medical University of Vienna,
2nd and 3rd March 2017
Editors:
Herwig Czech, Christiane Druml, Paul Weindling
With contributions from:
Markus Müller, Paul Weindling, Herwig Czech,
Aleksandra Loewenau, Miriam Offer,
Arianne M. Lachapelle-Henry, Priyanka D. Jethwani,
Michael Grodin, Volker Roelcke, Rakefet Zalashik,
William E. Seidelman, Edith Raim, Gerrit Hohendorf,
Christian Bonah, Florian Schmaltz, Kamila Uzarczyk,
Etienne Lepicard, Elmar Doppelfeld,
Stefano Semplici, Christiane Druml, Claire Whitaker,
Michelle Singh, Nuraan Fakier, Michelle Nderu,
Michael Makanga, Renzong Qiu, Sabine Hildebrandt,
Andrew Weinstein, Rabbi Joseph A. Polak
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S160
Table of contents
Editorial: Medical ethics in the 70 years after the Nuremberg Code, 1947 to the present
S161 Markus Müller
Post-war prosecutions of ‘medical war crimes’
S162 Paul Weindling: From the Nuremberg “Doctors Trial” to the “Nuremberg Code”
S165 Herwig Czech: Post-war trials against perpetrators of Nazi medical crimes – the Austrian case
S169 Aleksandra Loewenau: The failure of the West German judicial system in serving justice: the case of Dr. Horst Schumann
Miriam Offer: Jewish medical ethics during the Holocaust: the unwritten ethical code
From prosecutions to medical ethics
S172 Arianne M. Lachapelle-Henry, Priyanka D. Jethwani, Michael Grodin: The complicated legacy of the Nuremberg Code in the
United States
S180 Volker Roelcke: Medical ethics in Post-War Germany: reconsidering some basic assumptions
S183 Rakefet Zalashik: The shadow of the Holocaust and the emergence of bioethics in Israel
S186 William E. Seidelman: The tainted eponym: transgression and memory in medical science
S191 Edith Raim: West and East German “euthanasia” trials since 1945
The national impacts of the Nuremberg Code
S195 Gerrit Hohendorf: The Sewering Affair
S199 Christian Bonah/Florian Schmaltz: The reception of the Nuremberg Code and its impact on medical ethics in France:
1947–1954
S202 Kamila Uzarczyk: Auschwitz doctors on trial: the cases of Hans Münch, Johann Paul Kremer and Roman Zenkteller
S206 Etienne Lepicard: Nazi medical crimes and the Jerusalem Declaration on Medical Ethics, 1952
From ethics codes to bioethics: international initiatives to codify bioethics
S212 Elmar Doppelfeld: The role of the Council of Europe
S215 Stefano Semplici: Consent and special vulnerability: the Universal Declaration on Bioethics and Human Rights
Bioethics and human rights: the global situation
S219 Christiane Druml: Bioethics in Austria and its European context
S222 Michael Makanga: The development of bioethics in Africa: the role of the European and Developing Countries Clinical Tri-
als Partnership
S225 Renzong Qiu: The legacy of the Nuremberg Code and the approach to bioethics in Mainland China
To use or not to use
S228 Sabine Hildebrandt, William E. Seidelman: To use or not to use: the legitimacy of using unethically obtained scientific
results or human tissues from the National Socialist era
Contemporary artists on medical ethics from the Nuremberg Medical Trial to the present
S231 Andrew Weinstein: Beyond argument: contemporary artists on euthanasia
Annex
S239 Rabbi Joseph A. Polak: Vienna Protocol for when Jewish or Possibly-Jewish Human
Remains are Discovered
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S161
Keywords: Bioethics · History · Research ethics · Medi-
cal ethics · Human rights · Transitional justice · Informed
consent · Nuremberg Medical Trial · Nazi medicine ·
Nuremberg Code · Euthanasia · Moral dilemmas · Geno-
cide · Human experimentation · Medical eponyms · Na-
tional Socialism · War crimes trials · human experimen-
tation · human tissues
Summary Ethics has been an integral part of medicine
since ancient times. However, the atrocities committed
as part of Nazi medicine necessitated a novel approach,
resulting in a framework of modern bioethical standards.
Since World War II, we have witnessed a broad move-
ment towards the introduction of normative regulations
for medical research. is trend initially started with the
Nuremberg Medical Trials and the “Nuremberg Code” of
1947, followed by the Helsinki Declaration of the World
Medical Association of 1964, including later modica-
tions and amendments. Furthermore there are relevant
recommendations issued by the organs of the Coun-
cil of Europe and by the World Health Organisation, the
UNESCO Declarations and EU legislation, to name only
the most important examples. Since the 1970s, the rapid
and global development of the life sciences, with its un-
precedented possibilities to interfere with basic aspects
of human life, for example in reproductive medicine, has
led to an even greater necessity to confront bioethical
questions worldwide. e HIV pandemic burdening the
Global South has required conducting research in dier-
ent areas of the world and involving especially vulnera-
ble populations. In view of these developments, the main
topic of the conference was the inuence of Nazi medical
crimes, the Nuremberg Medical Trial and the resulting
Nuremberg Code on the development of international
bioethical norms, including the enduring impact of this
legacy on today’s medical research. In the 70 years since
the promulgation of the Code, the world has changed:
Research is based on the principles of exchange and co-
operation, researchers are mobile, the internet provides
a supporting framework removing national barriers. Al-
though the European situation, with special attention to
Austria, was part of the discussion, an important focus of
the conference was on the role played by international or-
ganisations and their endeavours to establish normative
standards for clinical research with a worldwide reach.
Editorial: Medical ethics in the 70 years after the
Nuremberg Code, 1947 to the present
Markus Müller, President ( “Rector”) of the Medical
University of Vienna
markus.mueller@meduniwien.ac.at
In March 2017, our university commemorated the 70th
anniversary of the implementation of the Nuremberg
Code with the international symposium “Medical ethics
in the 70 years after the Nuremberg Code, 1947 to the pre-
sent”. e Nuremberg Code constitutes one of the most
important milestones in the history of medicine, provid-
ing for the rst time a proper framework for research on
human subjects. Sadly, this milestone was not a volun-
tary, precautionary measure resulting from enlightened
humanity, it only came into existence in the aftermath
of dreadful Nazi atrocities. Following its conception, the
Nuremberg Code bore rich fruit in multiple legal regards,
becoming a cornerstone of clinical research and bioeth-
ics [1].
For Austrian science in particular, the discourse on
Nazi crimes and, thus, the Nuremberg Code became a
special warning from history due to the involvement of
prominent Austrian physicians in Nazi experiments [2].
Hitler’s alleged statement to Max Planck “If the dismiss-
al of Jewish citizens means the annihilation of German
science, then we shall do without science for a few years
[3], proved to be self-fullling in two aspects: rstly, in a
profound moral way, and secondly a long-lasting intel-
lectual breakdown in the Austrian scientic communi-
ty. e importance of the context of the Nuremberg Code
cannot be overestimated and acts as a foundation for the
very basis of the attitudes of a global medical profession,
which today—in a world heavily focused on professional
skills and practices—might sometimes be at risk of slip-
ping out of focus.
In my inauguration speech as the newly elected rector,
I drew attention to the fact that I consider the transfer of
attitudes to the next generation to be more important for
a university than the transfer of mere technical skills [4].
is idea is also exemplied by the Einstein quote “It’s
not intellect that makes a great scientist, it is character”.
Unfortunately, this very thinking disappeared in Austria
with the annexation to Nazi Germany. It is to the particu-
lar credit of my predecessor, Wolfgang Schütz, and oth-
ers of his generation like Wilfred Druml, former editor
of the “Wiener Klinische Wochenschrift”—the once high-
ly prestigious journal where Karl Landsteiner described
his discovery of blood groups—that our university has fo-
cused on the dreadful time of 1938–1945 once more [5, 6].
In particular, the distressing fact was acknowledged that
“little was done after the war, following the collapse of the
ird Reich, to correct the agrant injustice and barba-
rism” [5] and that many were allowed to continue their
work, like Eduard Pernkopf, a former rector of the uni-
versity, who continued work on his notorious anatomi-
cal atlas [7, 8]. e question on how to deal with human
remains was also a focus of the symposium, as reected
Dr. Christiane Druml ()
UNESCO Chair on Bioethics of the Medical University of Vienna
Ethics, Collections and History of Medicine of the
Medical University of Vienna
1090 Vienna, Austria
christiane.druml@meduniwien.ac.at
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S162
by Rabbi J. Polak’s “Vienna Protocol for when Jewish or
possibly-Jewish human remains are discovered” in this
issue [9, 10] and a recent paper that originated from dis-
cussions during the symposium on transparency regard-
ing the origin of human tissues in research [11].
On behalf of our University, I am deeply indebted to
Christiane Druml, Herwig Czech and Paul Weindling
who took on the planning and organisation of the sym-
posium and who were also instrumental in helping com-
memorate the events of the dreadful year 1938 in March
2018.
From the Nuremberg „Doctors Trial“ to the
„Nuremberg Code“
Paul Weindling, School of History, Philosophy and
Culture, Oxford Brookes University, Oxford OX3 0BP,
United Kingdom
pjweindling@brookes.ac.uk
At the close of the Nuremberg Medical Trial (NMT) on 19
August 1947, the judges pronounced guidelines on per-
missible clinical experiments. From around 1963 these
guidelines were called the “Nuremberg Code, there-
by investing them with status as a fundamental docu-
ment on research procedure [12]. eir status as part of
a judgement at an international court set a precedent in
judging landmark cases of murderous and maiming con-
duct arising from coercive research. e aim of this paper
is to correct some misconceptions concerning the ori-
gins and implications of these guidelines. e rst mis-
conception is that the Guidelines/Code arose solely from
courtroom proceedings. is overlooks an agenda which
had existed since the liberation of concentration camps
to secure a set of regulations to protect research subjects.
In short, the victim had agency by protesting against, re-
sisting and sabotaging the coerced experiments, and
when it came to being witnesses at the NMT, a reective
voice. Victims of research and liberated prisoner doctors
made a profound impression on Allied scientic intelli-
gence ocers, who then laid the knowledge-base for the
NMT. Secondly, although the judges stressed the auton-
omy of the research subject and the obligation to inform
about potential risks, the key term “informed consent”
did not appear in the guidelines of 1947. irdly, it is a
misapprehension that the principles promulgated by the
judges received neither publicity nor recognition. e
case against the Vienna internist Wilhelm Beiglböck il-
lustrates salient aspects.
1. Contextualizing the Code
e declaration, “e Prisoner Doctors of Auschwitz to
the International Public” issued on March 4, 1945 stated
that prisoners had been treated as experimental animals,
that the Allies and neutral states should bring to trial those
responsible, and that the prosecution of perpetrators
would prevent coerced human experiments and medical
atrocities in the future [13]. ere were comparable eorts
by liberated prisoner doctors to document Nazi medical
experiments at the camps of Buchenwald and Dachau.
Prisoner documentation came to the attention of Al-
lied scientic intelligence ocers, notably the neuro-
physiologists Leo Alexander (with the US military) and
John ompson (as head of the British branch of the FIAT
scientic organisation) [14]. ompson interrogated the
Belsen doctor Fritz Klein, who had conducted experi-
ments with mescaline and on the drug Rutenol in Ausch-
witz [15]. Concerned about the criminality of German
wartime research, ompson rst identied the experi-
ments as “Medical War Crimes” in November 1945. is
specic form of medical criminality required that scien-
tic intelligence and war crimes investigation teams col-
laborate. To attract attention to the problem of coerced
experimentation, ompson stated that 90% of German
wartime medical research by leading scientists and clini-
cians was criminal [16: 115].
ompson’s contacts with the United States war
crimes agencies led to meetings with Andrew Ivy (1893–
1975), a Chicago-based physiologist who had conducted
wartime research on desalination for the US Navy. Some
servicemen had opted out during these experiments, and
Ivy recognised their full autonomy. Ivy was nominated by
the American Medical Association for an appointment
as Special Consultant (on Nazi medical research) for the
U. S. Secretary of War in 1946. ompson organised a
meeting on medical war crimes at the Pasteur Institute in
Paris from July 31 to August 1, 1946, when Ivy outlined a
set of principles on medical research.
Ivy’s “Outline of principles and rules of experimenta-
tion on human subjects” stated that:
“I. Consent of the subject is required; i. e. only volunteers
should be used.
(a)
e 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. e 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. e experiment should be conducted
a. so as to avoid unnecessary physical and mental suer-
ing and injury, and
b. by scientically qualied persons
c. e experiment should not be conducted if there is a
prior reason to believe that death or disabling injury
will occur.” [17: 115, 261–5]
is long-overlooked draft code was drawn up a year be-
fore the Guidelines of August 1947. It was the basis for
mounting the NMT as well as a series of revisions in the
suggested code. ompson’s investigations of medical
crimes provided a basis for prosecution. e decision
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S163
by Chief Prosecutor Telford Taylor to hold the NMT was
made shortly after the Pasteur Institute meeting in Au-
gust 1946 [17: 265].
Ivy was nominated by the American Medical Associa-
tion to the U. S. Secretary of War, who appointed him ex-
pert witness to the court at the NMT. Ivy reected, “I ac-
cepted the invitation to serve at the Nuernberg trials only
because I had in mind the objective of placing how hu-
man beings may serve as subjects in a medical experi-
ment [sic], so that these conditions would become the in-
ternational common law on the subject” [18].
e relevance of the 1931 Reich circular on human ex-
periments was to be an issue for the NMT defence and
prosecution. at the Reich guidelines retained valid-
ity has been conrmed by Roelcke [19]. However, that
all German research abided by the Reich directive was a
misleading claim made by a defensive German medical
establishment and defendants [20].
Ivy saw the matter in terms of violations of the Hip-
pocratic Oath. On December 28, 1946 the Journal of the
American Medical Association (JAMA) published recom-
mendations for an abbreviated Code. is required the
following:
“e voluntary consent of the individual on whom the
experiment must be performed must be obtained. e
danger of each experiment must be previously investigat-
ed by animal experimentation. e experiment must be
performed under proper medical protection and man-
agement” [21].
During the NMT, Ivy assessed German/Austrian med-
ical research: he astutely observed that the defendant
Wilhelm Beiglböck altered records of the Dachau experi-
ment on making seawater drinkable, so as to conceal the
eects of the dierent types of desalinated seawater on
victims. e judges consequently increased Beiglböck’s
sentence [22, 17: 287].
Ivy’s main achievement was to drive forward the agen-
da of an ethical code. As Ivy reected in 1964: “the judges
and I were determined that something of a preventative
nature had to come out of the ‘Trial of the Medical Atroci-
ties’ ” [23]. His special sense of mission is conrmed by a
Special Press Release on January 22, 1945:
“Dr. Ivy … left Nuremberg with the recommendation
that an international legalised code of ethics should be
published on the use of human beings as experimental
subjects” [24]. Ivy provides a clear agenda for the NMT,
recommending that it should conclude with a set of ethi-
cal principles.
2. The victims’ voice
e Trial was distinctive in that victims had a key role as
witnesses. e Medical Trial relied more on victim testi-
mony than either the four-power International Military
Tribunal or the later American military-administered
trials. e prosecutors made radio appeals in German,
Czech, and Polish for witnesses and victims of medical
experiments. Letters from experiment and sterilisation
victims provided signicant testimony. Victims’ organi-
sations—such as Opfer des Faschismus, and the Betreu-
ungsstelle für Sonderfälle—also sent evidence to the
Nuremberg prosecution [23].
A victim of X-ray sterilization stated that he had come
forward as a result of the radio call for witnesses. Leo Al-
exander, a US military expert in aviation medicine and
originally a graduate of the University of Vienna, was
appointed expert witness to the prosecution. He wrote
about the aforementioned victim of X-ray sterilization
experiments at Auschwitz:
“When he heard over the radio that the people respon-
sible for the German medical atrocities are going to be
tried, he decided that it was his duty to come here and to
testify although he is afraid that, especially if his name is
printed in newspapers, his sisters might nd out about his
condition that way. However, he feels that it is his duty to
be helpful in bringing those responsible for the atrocities,
to which he and others have been subjected, to justice.
It appears that he is one of 100 young Jewish boys who
were castrated for no reason other than to conrm the
fact that they had been sterilised by sucient X-ray radi-
ation, as if X-ray burns which resulted from a fteen min-
ute exposure were not enough to prove that point” [24].
Victims took the initiative in alerting the police about
medical criminals. In February 1946, Dachau survivors
alerted the Austrian state police that Wilhelm Beiglböck
had conducted allegedly fatal experiments in Dachau.
e investigations uncovered the involvement of the in-
ternist Hans Eppinger of the Vienna Medical Faculty, and
led to the arrest of Beiglböck in Lienz, in the British zone
of occupation. Beiglböck was transferred to Nuremberg
by the British in September 1946. He was the one Aus-
trian defendant at the Medical Trial [25]. Beiglböck was
a member of the SA, and not one of the seven SS doctors
on trial.
ere were three non-medical defendants, all SS mem-
bers: Viktor Brack of the Chancellery of the Führer, who
was responsible for euthanasia killings and X-ray steri-
lization experiments; Rudolf Brandt, who, as Himmler’s
secretary, was involved in arrangements for experiments
on concentration camp prisoners; and Wolfram Sievers,
manager of the SS Ahnenerbe research organisation.
In the case against Beiglböck, the Sinto witness Karl
Höllenrainer punched Beiglböck when asked to identi-
fy him in court. Höllenrainer’s testimony stressed Beigl-
böck’s role in mistreatment and coercion. Beiglböck
was accused of drawing a pistol to force the Sinto Rudolf
Taubmann, who had survived freezing water and malaria
infection experiments at Dachau, to submit to the desal-
ination experiment. However, the prosecution failed to
prove any fatalities from the experiment (although one
research subject died before liberation, the connection
with the experiment is unclear) [21].
On July 17, 1947 the defence lawyer Gustav Steinbauer
made an eloquent and revealing nal plea for Beiglböck,
pleading that deaths should be accepted the necessary
price of medical progress:
“Over the entrance gate of the General Hospital in Vi-
enna we read the words ‘Saluti et solatio aegrorum—Ded-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S164
icated to the health and consolation of the sick.’ ese
words not only demand the highest accomplishment of
the doctor’s duties but are the motive for the most suc-
cessful work in the large eld of medical research. eory
and practice joined together in order to become a piece
of living humanity. I would go beyond the limits of my
task if I mentioned all the names that spread the glory of
the University of Vienna throughout the world. But their
penetration into the world of the unknown was always a
hazardous enterprise which demanded courage and sac-
rice.
I want to quote the words of one of the great doctors,
Professor Wagner-Jauregg, who says in his book ‘Fever
and Infection erapy’,
‘e vaccination against malaria was certainly a risk,
the outcome of which could not be foreseen. It was dan-
gerous for the patient himself and this to a much higher
degree than the treatment with tuberculin and other vac-
cines, and it also was a danger for the surroundings and
even for the community.
And, on page 136, it states ‘ree patients died after
having been vaccinated with blood infected with malar-
ia tropica and not with malaria tertiana’; and ‘e tragic
outcome of this experiment was discouraging, and only
a year later could the author decide to proceed with the
malaria vaccinations…
Nobody talks of these victims today, but Wagner-
Jauregg’s revolutionary discovery is known and adopt-
ed throughout the world and has become the common
property of all peoples for the benet of suering man-
kind…” [26].
e judges’ concluding principles sought to refute
such dangerous arguments made by a series of defend-
ants—that the injury and death of human subjects is nec-
essary for medical progress.
With this aim in mind, US and British scientic intelli-
gence ocers (Leo Alexander, Keith Mant, John omp-
son) collected evidence from victims. e Court pro-
ceedings ran on two levels: that of an international trial
of the consequences of aggressive war resulting in crimes
against humanity, and an ethics tribunal concerned with
the medical validity of the research and consent of the
research subject. e conduct of the trial involved fre-
quent ethical discussions. e judges asked defendants
for their opinions: Kurt Blome and Karl Brandt gave their
opinions on clinical experiments. Blome’s statement that
that prisoners should always be volunteers and receive
a reduction of sentence or an amnesty showed criticism
of the concentration camp experiments. e defendants
could cross-examine expert witnesses [27]. At one stage,
Ivy was cross-examined by the defendants Ru, Rose and
Beiglböck. e Trial had a dual character as a criminal
court and as an ethics debating chamber.
3. From ethical debate to the final declaration
On December 7, 1946, just after the commencement of
the NMT, Alexander noted that he had “Completed ethi-
cal and non-ethical exp. on human beings.” is text out-
lined the conditions for “permissible experimentation
by a doctor” [28]. As in Ivy’s draft guidelines of August 1,
1946, Alexander required the consent and voluntary par-
ticipation of the experimental subject. While Ivy required
the experiment to be useful, Alexander preferred a more
generalised viewpoint, that the experiment should not be
unnecessary; both concurred that results should be for
the good of society. is overlap suggests that Alexander
took Ivy’s report as a basis for his views. Alexander am-
plied the concept of consent, as based on proven un-
derstanding of the exact nature and consequences of the
experiment. A doctor or medical student was most likely
to have the capacity for full understanding. e degree of
risk was justied by the importance of the experiment,
and the readiness of the experimenter to risk his own life.
Overall, Alexander produced a more rigorous set of re-
quirements than either Ivy or the minimalist AMA code.
Rather than informed consent, the expression of
choice at the trial was “Voluntary Consent”. is went
with disclosure of risks. Alexander also noted the inten-
tion of the judges to rule on issues of experimentation
at the end of the NMT: “As we have anticipated all along
the defense is making a concerted eort to introduce a
great deal of literature on human experimentation in oth-
er countries. So far we have been successful in keeping
out most of the proof, but the Tribunal has stated that it
will rule on this question at the conclusion of the case”
[29]. e judges provided a distillation of the Alexander
and Ivy drafts along with stress on the autonomy of the
research subject. Voluntary consent meant that “the per-
son involved should have legal capacity to give consent;
should be so situated as to be able to exercise free pow-
er of choice, without the intervention of any element of
force, fraud, deceit, duress, over-reaching, or other ulte-
rior form of constraint or coercion; and should have suf-
cient knowledge and comprehension of the elements of
the subject matter involved as to enable him to make an
understanding and enlightened decision…” [30: 267–8]
4. Publicising the Guidelines
e declaration on permissible experiments provided
criteria for the judgment of the 23 defendants. It was in-
tended to be circulated widely, thereby fullling Ivy’s
hope of entering the international common law on medi-
cal experiments. Telford Taylor had been meticulous in
allowing press access and in inviting international jurists
as observers. e presence of the German medical del-
egation throughout the trial was remarkable. e judge-
ment was publicised in German by Alexander Mitscher-
lich and Fred Mielke in their NMT overview Wissenschaft
ohne Menschlichkeit [30], and in French by François Bay-
le, the French military observer in his study of the Tri-
al [31]. Importantly, in 1949 Telford Taylor published the
guidelines on “Permissible Medical Experiments” in his
contribution to Doctors of Infamy, which was based on
the interim publication by Mitscherlich and Mielke with
additional contributions by Taylor, Ivy and Alexander
[32]. e volume included a draft apology which the Ger-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S165
man delegation declined to make at the rst World Medi-
cal Association (WMA) meeting, and a concise version of
the WMA’s revised version of the Hippocratic oath, ori-
ented to practitioners. Commentators have suggested
that the volume had an impact on various international
conventions and agencies [33]. e WMA and WHO kept
the issue of war crimes committed by the medical profes-
sion at the forefront with a preliminary report on “War
Crimes and Medicine. e German Betrayal and a Re-
statement of the Ethics of Medicine,” which was prepared
in 1948 [34]. U. S. military and ocial agencies took note
of the NMT judicial guidelines [35].
e judges’ guidelines on permissible experiments
were a distillation of a wider post-WWII discourse in
which victims had a crucial role. Each version of the
guidelines needs to be situated in context. e expert
witness Ivy had a rm agenda which he impressed on
the judges, prompting their guidelines on permissible
experiments. ese guidelines derived from Ivy’s origi-
nal principles of August 1946, which were then elaborat-
ed by Alexander and nally, the judges added the addi-
tional principle of the autonomy of the research subject.
e guidelines were readily available as a reference doc-
ument in English, French and German in the period after
the NMT. is explains the adoption of these guidelines
in medical jurisprudence in the early 1960s as a denitive
“Nuremberg Code”.
Post-war trials against perpetrators of Nazi
medical crimes – the Austrian case
Herwig Czech, PhD, Medical University of Vienna,
Ethics, Collections and History of Medicine,
Währinger Straße 25, 1090 Vienna, Austria
herwig.czech@meduniwien.ac.at
After the defeat of Nazi Germany, there was a wide-
ly shared expectation that criminal proceedings could
provide a measure of retributive justice, and that these
would lay the groundwork for stronger ethical norms for
the future. In the case of the Nazi medical crimes, the
Nuremberg Medical Trial epitomises the link between
criminal law and the hope to (re)establish binding ethi-
cal norms. In my paper, I will focus on how the courts af-
ter the war dealt with the medical crimes committed on
present-day Austrian territory (or, as in the case of Wil-
helm Beiglböck, by Austrian perpetrators), and what we
can learn from this about Austrian post-war society.
In legal terms, Austria regained its independence as
a country in 1945, however the occupation by the Allies
meant that the power of the Austrian state was limited,
at least in the immediate post-war period. erefore, I
would like to start my brief overview of the legal response
to Nazi medical crimes in Austria at the top level: the Al-
lied authorities.
The Mauthausen Concentration Camp Case
e rst instance in which a perpetrator of Nazi medical
crimes in Austria was indicted before an Allied military
court was not the much more well-known Nuremberg
Medical Trial (NMT), but the ‘Mauthausen Concentra-
tion Camp Case’ (or ‘USA vs. Altfuldisch etal.’), tried by
a US Military Court at the former concentration camp of
Dachau, between March and May 1946. Among the 61 de-
fendants, eight had a medical background: four SS camp
doctors (Eduard Krebsbach, Waldemar Wolter, Friedrich
Entress, Willi Jobst), two SS dental surgeons (Wilhelm
Henkel, Walter Höhler), the Mauthausen pharmacist Er-
ich Wasicky, and one paramedic (Gustav Kreindl). ey
all received death sentences for their participation in the
murder of prisoners, using among other methods benzol
injections or poison gas. e two dental surgeons had re-
moved gold from prisoners’ dead bodies. At Gusen, nu-
merous unnecessary operations had been performed;
human experiments with hormones and articial nutri-
tion were also mentioned during the proceedings [36:35–
6, 46, 49, 55, 58].
With the exception of Walter Höhler, whose sentence
was commuted to life imprisonment (of which he served
only a few years), the convicted perpetrators were exe-
cuted in May 1947. is seemingly resolute prosecution
of medical crimes in Mauthausen and its satellite camps
has to be contrasted with the fact that the number of SS
doctors linked to the Mauthausen/Gusen complex alone
amounted to at least 50; despite a series of further tri-
als, most of them never had to answer for their crimes
[36:36–7, 64–6].
e trial also established a link between the concen-
tration camp system and the so-called ‘Action T4’, ini-
tiated in 1939 for the extermination of psychiatric pa-
tients. Between 1941 and 1945, up to 8,000 prisoners from
Dachau and the Mauthausen/Gusen complex were sent
Fig. 1 Defendants during the ‘Mauthausen Concentration
Camp Case’ (standing: former Ebensee concentration camp
physician Willi Jobst) (United States Holocaust Memorial Mu-
seum/USHMM)
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S166
to the ‘T4’ killing centre at Hartheim near Linz to be mur-
dered in the gas chamber [37: 63–4]. e only perpetrator
from Hartheim whom the prosecution could secure for
the trial, Vinzenz Nohel (1902–1947), stood out among
the defendants. As a manual laborer responsible for the
operation of the crematorium (court documents call him
the ‘reman at Castle Hartheim’), he represented the
lowest rung of the hierachy. He was also the only defend-
ant who spoke openly about his participation in the mass
extermination. Ironically, the man who helped murder
tens of thousands of psychiatric patients hoped to evade
punishment by pretending to be mentally ill himself. e
court, however, did not accept this line of defense and
sentenced him to death. e harshest sentence thus fell
on one of the least signicant cogs in the Hartheim killing
machine [36: 47, 50, 61].
The Nuremberg Medical Trial and its significance for
Austrian medicine
Without a doubt, the Nuremberg Medical Trial had a
much stronger inuence on the subsequent interna-
tional perception of Nazi medical crimes than any oth-
er event, including the Mauthausen Concentration Camp
Case. For various reasons—chief among them the avail-
ability of defendants and the diculty in prosecuting
crimes committed by Germans against Germans before
a military court—the extermination centre at Hartheim
played only a marginal role; the vast majority of the ac-
cused had been involved in criminal human experi-
ments, not in the ‘euthanasia’ murders [38]. is was the
case for the only Austrian among the 23 defendants, Wil-
helm Beiglböck (1905–1962), formerly an assistant at Vi-
enna University’s Clinic of Internal Medicine, who was
indicted for his seawater drinking experiments on pris-
oners at Dachau concentration camp [most recently: 21].
Since Beiglböck was a relatively minor gure, the trial’s
impact on the medical public at the time was limited. e
Österreichische Ärztezeitung, the ocial mouthpiece of
the Austrian medical profession, did not mention the tri-
al once in 1946 or 1947. e signicance of the NMT for
Austrian medical ethics, which today is not in doubt (see
the chapter by Christiane Druml in this volume), must
have emerged much later, via its international reception.
Beiglböck’s superior at the Vienna University Clinic for
Internal Medicine, Prof Hans Eppinger Jr. (1879–1946),
given his international renown and his position in the
Viennese medical community, would have made an in-
teresting witness or even defendant. Despite having rec-
ommended his assistant for the Dachau experiments and
having personally visited the camp on at least one occa-
sion, he initially escaped scrutiny by Allied war crimes
investigators [39, 40]. In September 1946, however, Ep-
pinger killed himself after being summoned to Nurem-
berg as a witness, probably out of fear of being personally
implicated [41]. With his suicide, he saved the universi-
ty some embarrassment, which has not since been very
eager to remember this dark chapter. Furthermore, there
was also the suspicion that patients had been harmed in
ruthless medical experiments at Eppinger’s clinic, allega-
tions which were never further investigated after his sui-
cide [42: 139–40]. Beiglböck was originally sentenced to
15 years imprisonment, but had his sentence reduced to
10 years in 1949; in 1951, he was released and could con-
tinue his medical career in Germany. Repeated attempts
to return to Austria failed [21: 159–62].
Erwin Jekelius, ‘child euthanasia’, ‘Action T4’ and the
Soviets
Perhaps surprisingly, the only key perpetrator of the ‘eu-
thanasia’ extermination programme on Austrian territo-
ry to be tried by Allied authorities was held to account
not by the US or British, but the Soviets. A paediatrician
trained at the Vienna Children’s University Clinic un-
der Franz Hamburger (1874–1954), Erwin Jekelius (1905–
1952) was the founding director of the child ‘euthanasia’
clinic ‘Am Spiegelgrund’ from 1940 to 1942 (for details on
this institution, see below). Much less well-known is his
role as the secret representative of the ‘T4’ organisation in
Vienna, tasked with coordinating the patient transports
to the gas chamber at Hartheim. e main reason for the
relatively late uncovering of Jekelius’ role in the ‘T4’ pro-
gramme was that he was arrested and tried by the Sovi-
ets. While the trials held in the British, French or Amer-
ican zones of occupation were widely publicised and
served as a stage to teach the world about Nazi crimes,
Erwin Jekelius was tried in secrecy in Moscow, where he
died from cancer in prison in 1952. When transcripts of
Jekelius’ interrogations by the NKVD were obtained by
German journalists from a Russian archive in 2005, they
not only provided new details on the execution of ‘T4’ in
and around Vienna, they also revealed that Jekelius had
been relieved of his post at Spiegelgrund and drafted into
the military in 1942 on personal orders from Hitler, who
Fig. 2 The Viennese physician Wilhelm Beiglböck pleads ‘not
guilty’ at the Nuremberg Medical Trial (United States Holo-
caust Memorial Museum/USHMM)
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Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S167
disapproved of a romantic relationship between his sister
Paula and Jekelius [43: 60].
Trials before the Volksgerichte against ‘T4’ perpetrators
Overall, the war crime trials held by the Allied powers
represented only the tip of the iceberg of all criminal
prosecutions of Nazi perpetrators. In Austria, the bulk of
cases was dealt with by the so-called Volksgerichte (‘Peo-
ple’s Courts’), which were created in 1945 for this pur-
pose. During the ten years of their existence, from 1945
to 1955, these courts opened proceedings against more
than 130,000 individuals. In principle, they had the re-
sources and the determination to deal with Nazi crimes
on a systematic basis. In the reality of post-war Austria,
however, the initial enthusiasm to deal with Nazi crimes
quickly subsided, so that in the end relatively few convic-
tions or even trials resulted [44: 46].
Under the code name ‘T4’, 70,000 patients were de-
ported from psychiatric hospitals all over Germany (in-
cluding Austria and other annexed territories) to one
of six killing centres, to be murdered in gas chambers.
e most important of these was the above-mentioned
Hartheim Castle near Linz, were 18,000 psychiatric pa-
tients and at least 8,000 prisoners from the Dachau and
Mauthausen concentration camps were killed [45]. From
the prosecution’s standpoint, these murders should have
been clear-cut cases; even by the legal standards of Nazi
Germany, there could be no doubt about their criminal
nature according to the Reichsstrafgesetzbuch (the Ger-
man criminal code), let alone the Austrian penal code.
Murdering so many people required many participants,
not just the personnel necessary to operating the killing
centres, but also sta at the various hospitals who sent
patients to their deaths, and not least the so-called ‘ex-
perts’ who decided who would be killed. Bringing the
perpetrators to justice was complicated by a number of
factors, however: Hartheim medical director Rudolf Lo-
nauer (1907–1945) committed suicide with his family af-
ter Germany’s defeat; his deputy, Georg Renno (1907–
1997), went into hiding. He was put on trial in 1967 in
West Germany, but the eorts to hold him responsible
failed when he presented medical certicates claiming
that he was unt for trial [44: 52, 46: 95, 108–12]. Anoth-
er of the main perpetrators at Hartheim, former admin-
istrative director Christian Wirth (1885–1944), was killed
by partisans near Trieste [47]. His deputy and successor
in Hartheim was Franz Stangl (1908–1971), who was lat-
er transferred to ‘Aktion Reinhardt’ (the code name for
the extermination of three million Jews in occupied Po-
land) and a striking example for the failings of the Austri-
an authorities. In 1948, he managed to escape from pre-
trial detention in Linz, and, with the help of the Austrian
bishop Alois Hudal (1885–1963) in Rome, could ee rst
to Syria, then to Brasil. Stangl was only held accountable
for his crimes in 1970, when a West German court sen-
tenced him to lifelong imprisonment. He died one year
later [46: 156–8]. With the main Hartheim perpetrators
out of the authorities’ reach, the Volksgericht (in this case
in Linz) was limited to adjudicating the responsibility of
bus drivers, nurses and guards, handing down verdicts
in November 1947, and July 1948. In a separate trial, the
leading Nazi health functionary in the Tyrol, Hans Czer-
mak (1892–1975), was sentenced to eight years imprison-
ment in connection with the ‘T4’ transports to Hartheim
[44: 50].
‘Decentralised euthanasia’
Prosecution was more successful in the case of three psy-
chiatric hospitals, two in Lower Austria and one in Carin-
thia, where doctors had directly murdered hundreds of
patients—clear-cut examples of how after the stop of ‘T4’
in August 1941, many psychiatric hospitals were turned
into sites of ‘decentralised euthanasia’ [48]. In April 1946,
the Volksgericht Graz (External Senate in Klagenfurt)
handed down death sentences against the psychiatrist
Franz Niedermoser (1901–1946) and three nurses at the
Klagenfurt State Mental Hospital (Siechenhaus und Irren-
anstalt des Landeskrankenhauses), Eduard Brandstätter,
Antonie Pachner and Ottilie Schellander. Only the death
penalty against Niedermoser was executed; Brandstätter
committed suicide on the day of the verdict, and the two
others saw their sentences commuted to prison terms.
Five other nurses received prison terms of 10 or 15 years
[49].
According to testimony given during the proceedings,
seriously ill patients, starting as early as 1940, were killed
at the Klagenfurt mental hospital through lethal drug
dosages. After the deportations to the gas chambers at
Hartheim were suspended—around 700 patients from
the Carinthian institution were also among the victims—
the killings in Klagenfurt were intensied. Between 1941
and 1945, under Niedermoser’s direction, the nursing
sta killed approximately three to four patients per week.
While initially mainly patients with advanced stages of
mental disorders were murdered, over time the death
spiral absorbed ever more groups, among them elderly
people, cardiac cases and cancer patients. e killing of
incurable, care-dependent, or simply just troublesome
patients turned into a normal routine for hospital sta.
While the Volksgericht considered 400 murders as prov-
en, an even higher number is probable [43: 66, 50: 42–62;
51, 52].
Another noteworthy trial dealt with the murder of
hundreds of patients in the mental institutions of Gug-
ging and Mauer Öhling in Lower Austria. Most of the vic-
tims were killed by drug overdoses, but the main perpe-
trator, Emil Gelny (1890–1961), also introduced a new
killing method by repurposing an electric shock device.
When the trial opened in June 1948, the main culprit was
missing; Gelny had managed to escape to Syria and lat-
er Iraq, where he died in 1961. Instead, 23 doctors, nurs-
es and administrative sta from the two institutions and
two of Gelny’s former superiors in the regional admin-
istration found themselves in the dock. Gelny’s absence
from the criminal proceedings meant that the other ac-
cused could downplay their own involvement and push
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S168
the blame onto him. An admission of guilt was the abso-
lute exception. Marie Gutmann represented the attitude
of the majority of the accused in her appeal to the presi-
dent for clemency: ‘I myself am a victim of the time and
circumstances known as the Nazi dictatorship.’ e high-
est sentences (12 to 10 years imprisonment) were handed
down to the head of the Gau administration, Joseph May-
er (1890–?), and Gau physician leader, Richard Eisen-
menger (1899–?). ey were found guilty of high treason
under the War Crimes Act, as well as being remote ac-
complices to the crime of ‘hired assassination.’ e court
said it could not be proven that they had ‘ordered’ Gel-
ny to murder, which would have incurred a much heavier
penalty. Furthermore, the court handed down sentences
of between two and four years to ten members of the hos-
pitals’ sta. Eight of the accused nurses were acquitted,
and one case was classied as manslaughter and hand-
ed over to an ordinary court. e acquittals were due to
a ‘lack of convincing evidence of guilt,’ whereas the court
did not consider the serious suspicions against the ac-
cused as refuted. Although some of those convicted were
sentenced to long prison terms, the sentences that they
actually served were—in view of the fact that they were
involved in hundreds of murders—ultimately relatively
short. e defendant who originally had the highest pun-
ishment, Josef Mayer, was freed in July 1951, after less
than six years in prison [5355].
No other instances of ‘decentralised euthanasia’ on
Austrian territory ever led to a trial, much less to a con-
viction. ousands of deaths due to starvation and ne-
glect (such as at the Vienna ‘Steinhof’ psychiatric hos-
pital), and in some cases additionally by drug overdoses
(such as at ‘Feldhof’ in Styria) remained unpunished.1
Trials against the ‘Spiegelgrund’ perpetrators
e Austrian courts’ response to the ‘child euthanasia’
programme followed a similar widespread pattern of rel-
atively harsh sentences immediately after the war, which
gave way to a rapidly decreasing interest from prosecu-
tors and courts to go after Nazi criminals. In Vienna,
close to 800 children had died at ‘Spiegelgrund,’ one of
the largest killing institutions within the ‘child euthana-
sia’ programme. Many of the children had been poisoned
because they suered from some kind of mental disabili-
ty. e fate of the Spiegelgrund’s rst director Erwin Jeke-
lius, who was arrested by the Soviets, has already been
mentioned. His successor Ernst Illing (1904–1946) was
sentenced to death in 1946 by the Vienna Volks gericht.
e press widely reported on the case. Since Illing had
come from Germany, his death sentence t well into
the Austrian narrative of victimhood at the hands of the
1 ere were plans for a trial against seven Steinhof physicians for
‘euthanasia’ killings and other crimes, but the case was closed in
1949. More consequential was a trial against two doctors who had
mistreated inmates at the ‘Workhouse for Antisocial Women and
Girls’ founded in 1941 on the Steinhof premises that ended with
prison sentences [44: 50, 55].
Nazi German occupiers. Together with Illing, two other
Spiegelgrund physicians were indicted. Marianne Türk
(1914–2003) was sentenced to 10 years imprisonment,
but released in 1948 on health grounds before being par-
doned in 1952. Margarethe Hübsch (1903–1983) was ac-
quitted [5658]. In 1948, a further trial was held against a
number of nurses from Spiegelgrund [44: 50].
Another former Spiegelgrund physician, Heinrich
Gross (1915–2005), weathered the phase of relatively in-
tense denazication as a prisoner of war. Although he was
arrested and put on trial when he returned from the Sovi-
et Union in 1948, he was acquitted in all but form in 1950,
and could subsequently embark on a successful career as
one of Austria’s most prominent psychiatrists. After his
release from pretrial detention, decades would have to
pass before a perpetrator of Nazi medical crimes—or in-
deed, any Nazi criminal—could be put on trial in an Aus-
trian court again. Tellingly, the rst trial in Austria that
dealt with Nazi medical crimes after a hiatus of more
than 25 years was a civil law suit that Gross, in the mean-
time one of Austria’s foremost forensic psychiatrists, led
against Werner Vogt, the protagonist of a group of pro-
gressive physicians who had publicly criticised him for
his involvement in the Spiegelgrund crimes. Gross won
in the rst instance in 1979 but two years later lost the
appeal process because the court considered his involve-
ment a proven fact. Although this decision, which coin-
cided with Gross reaching pension age, marked the end
of his career, another two decades past before the prose-
cution initiated criminal proceedings, resulting in a high-
ly publicised trial in 2000. is last attempt at seeking
justice for the Spiegelgrund victims was thwarted by the
claim that Gross was unt to stand trial [59]. It is possi-
ble that a conviction even at this late point in time would
have provided some sense of closure. However, the rather
disappointing ending to the Heinrich Gross case certain-
ly did not come as a surprise if we consider the mixed re-
sults of earlier attempts to provide justice for the victims.
Fig. 3 Physicians from the ‘Spiegelgrund’ killing clinic in the
dock (Neues Österreich, 16 July 1946)
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S169
Conclusion
Trials dealing with medical crimes on Austrian territory
(or by Austrian perpetrators) were, with few exceptions,
limited to the rst half decade after liberation. Memories
of the atrocities were still fresh, and the Allied powers ap-
plied pressure on the Austrian authorities to investigate
and adjudicate crimes committed under Nazi rule. At the
same time, Allied war crimes trials—most importantly,
the Mauthausen Camp Trial and the Nuremberg Medical
Trial—were held to adjudicate crimes against Allied na-
tionals, and lay the groundwork for further prosecutions
before Austrian and German courts. Despite considera-
ble eorts to bring the perpetrators to justice, the record
of both the Allied powers and the Austrian authorities in
this regard is mixed.
e Allies’ eorts were hampered by diculties in get-
ting hold of many of the perpetrators. Some had commit-
ted suicide at the end of the war, others were dispersed
over various zones of occupation, with cooperation be-
tween the four powers increasingly strained. e adjudi-
cation of the ‘euthanasia’ murders was further complicat-
ed by a focus on crimes against non-German nationals,
which could be prosecuted as war crimes. In the end,
only a tiny number of perpetrators were brought to jus-
tice this way.
e task of prosecuting the many doctors, nurses and
other sta responsible for the implementation of the kill-
ing programmes—not to speak of other inhuman acts
such as forced sterilisations and abortions—fell on the
so-called People’s Courts (Volksgerichte), which were
specically created in 1945 for the prosecution of Nazi
crimes. Despite some undeniable achievements (e.
g.,
trials concerning the Spiegelgrund child ‘euthanasia’
clinic in Vienna, and various psychiatric hospitals in
Lower Austria and Carinthia), the People’s Courts’ over-
all record in dealing with medical crimes is also mixed.
After an initial phase of active prosecutions that lasted
until around 1950, the judiciary’s willingness to pursue
such cases quickly subsided, in keeping with Austria’s
overall increasingly lenient approach to Nazi criminals.
When the anti-fascist consensus of the immediate post-
war years broke up, denazication and prosecution gave
way to the reintegration of the former National Socialists
into Austrian post-war society. During the following dec-
ades, Nazi medical crimes were rarely ever mentioned
in public; according to our current knowledge, nearly 50
years passed without a single criminal trial. is slowly
began to change in the late 1970s, when Heinrich Gross
came under increasing scrutiny for his past; the fact that
it took another 20 years before a nal attempt was made
to bring Gross to justice demonstrates how slowly Austri-
an society came to terms with this part of the past.
The failure of the West German judicial system in
serving justice: the case of Dr. Horst Schumann
Aleksandra Loewenau, PhD, Deutsche Akademie der
Naturforscher Leopoldina e.V., Leipzig, Germany
aleksandra.loewenau@leopoldina.org
1. Introduction: the case against Dr. Schumann
On September 23rd, 1970, nineteen years after the rst
arrest warrant had been issued, Dr. Horst Schumann -
nally appeared before a German judge. Schumann, who
at the time of the trial was a sixty-year-old trained physi-
cian, had been actively involved in providing expert opin-
ions to hereditary courts [60], directing T4 centres, select-
ing ill prisoners in 14f13 action and conducting coercive
medical experiments in Auschwitz Concentration Camp.
After the war, in June 1945, Schumann was captured by
the Allies and placed in a detention centre for Nazi crimi-
nals in Southern Germany. e American Army authori-
ties failed to identify him and Schumann left the camp a
free man. It took another ve years for the arrest warrant
to be issued. By the time the authorities arrived at Schu-
mann’s door in Gladbeck, he had already ed the coun-
try. He then spent ten years living and working in Africa.
In 1966, he was extradited to Frankfurt. e trial prepara-
tions took another four years. State prosecutor Johannes
Warlo, who had previously been involved in the Frank-
furt Auschwitz Trial and other euthanasia trails, pre-
pared an indictment according to which Schumann was
accused of “killing 15,314 people in the euthanasia cen-
tres in Berlin, Grafeneck, Sonnenstein, Buchenwald, and
Auschwitz between 1939 and 1941” [61]. In addition, he
was allegedly responsible for “conducting human exper-
iments on hundreds of male and female inmates, but at
minimum on 180 Jewish inmates, without their consent,
to test a mass-scale sterilisation and castration method
via x-rays” [62]. By March 1971, Schumann began self-in-
icting stomach injuries and high blood pressure in or-
der to delay the court proceedings [63]. As a result, he
had to be hospitalised. On November 1st, 1971, a medi-
cal report was submitted to the court stating that:
sometimes he suers greatly from chest pain and ir-
regular heartbeat […] In addition, there is dizziness,
and severe headache. At night he has to urinate twice.
Sometimes he suers from abdominal pain [62].
Consequently, Schumann was found not t to contin-
ue the legal case. Despite the widespread knowledge
of Schumann’s crimes, international attention given to
the Nazi atrocities following Eichmann and Auschwitz
Frankfurt trials, the impressive experience and dedica-
tion of the prosecution team and considerable evidence,
the proceedings were suspended in April 1971 [63]. e
prosecution did not even have the opportunity to put any
of the sterilisation victims on stand. On July 29th, 1972,
after six years of detention, Schumann was quietly re-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S170
leased from prison. He lived another thirteen years as a
free man.
is article aims to emphasise how the issues related
to the reconstruction of judicial system in post-war Ger-
many, the public perception of Nazi crimes and German
law impacted on the process of punishing former Nazis,
taking the case of Dr. Schumann as an example.
2. The allied occupation: punishment and
denazification
e silent acceptance of the constant breaching of the
Versailles Treaty by the ird Reich indirectly led to the
outbreak of the Second World War, which claimed the
lives of millions and caused massive destruction to Eu-
ropean cities. us, in 1945, there was a need for a tough-
er approach towards defeated Germany. Shortly after the
war ended, the Allies began manifesting dierences in
their opinion regarding important issues, one of which
was punishment of war criminals. After months-long de-
liberations, on December 20th, 1945, the decision was
made that the Allied-controlled courts would prosecute
Nazi crimes against the Allied citizens, and the crimes
against Germans were given at disposal of the German
judges. is became known as the Allied Control Coun-
cil Law 10 [6466]. Prior to allocating criminal cases to
German courts, the Allies had to clear the German judi-
cial system. In March 1945, the Allies created denazica-
tion boards that intended to investigate German public
service sector sta. is led to an immediate dismissal
of judges who had been actively involved in the creation
and implementation of laws passed by the former Nazi
government. e Control Commission’s Law 4 of Novem-
ber 30th, 1945 stated:
To eect the reorganization of the judicial system,
all former members of the Nazi party who have been
more than nominal participants in its activities and all
other persons who directly followed the punitive prac-
tices of the Hitler regime must be dismissed from ap-
pointments as judges and prosecutors and will not be
admitted to these appointments [67].
Soon after, the Allies realised that the number of dis-
missed judges was greater than anticipated. Eective-
ly, the activity of the German courts was suspended. To
solve this issue, judges who had been dismissed by the
Nazis or had retired prior to 1933 were called back into
service. is solution was insucient. e strict imple-
mentation of denazication was unrealistic regarding the
justice system sta. Towards the end of 1945, the major-
ity of Germans, who had been investigated by the denazi-
cation courts, were placed within 4th category, i.
e. fol-
lowers or 5th category—exonerated [68]. As a result, most
of judges who had been dismissed by the Allies now had
the possibility to apply to be reinstalled. is process ef-
fectively introduced a renazication. Taking the British
zone as an example, in 1948 80% of the judges were for-
mer Nazis, who in the ird Reich blindly adapted exist-
ing law to racial orders [69, 70]. After the war, a number
of those judges kept their positions or were reinstalled
and maintained the same pro-Nazi attitude. As years fol-
lowed, their students, who were educated in a similar
trend, took over the benches and maintained the same
order [69]. As a result, crimes committed by the Nazis
during the war were often justiable and advisable in the
eyes of jurists, and thus the wartime activity of those re-
sponsible for the deaths of thousands of people—such as
euthanasia centre sta—was viewed as implementing or-
ders rather than killing innocent people.
3. Collective guilt v. collective innocence
At the time when the International Military Tribunal was
being created, collective guilt as a form of judgement was
not intended. e aim was to put the decision-making
Nazi ocials on trial, while the rest of the nation was un-
dergoing democratic transformation. Unlike the Soviets,
who managed to maintain a collective guilt-free attitude
towards defeated Germans, the Americans struggled with
it, most likely due to the inuence of German Jews and
gentiles who were admitted to the US after they had been
forced out by the Nazis in the 1930s. Imposing collective
guilt awakened a strong defensive reaction among Ger-
mans; their resistance was manifested by labelling ver-
dicts of the Allied courts as victor’s justice. Moreover, the
crushing defeat of the Wehrmacht and the Allied bomb-
ings that devastated German cities resulted in the devel-
opment of feelings similar to victimhood within German
society [71, 68]. While Jewish survivors belonged to the
victors club, German gentiles were viewed as the defeat-
ed perpetrators and were judged collectively by the rest
of the world. Eugen Kogon, opponent of the Nazis and a
survivor of Buchenwald, once said:
Bystanders were an eect of ‘a political error’ and
should not be compared to actual perpetrators. ‘A po-
litical error’ does not belong to the court [71].
Opposing collective guilt was eectively denying collective
responsibility. While a large portion of the German pop-
ulation had not enthusiastically supported Nazi policies,
they had not condemned them either. us, one could as-
sume that silence implied acceptance. Germans reacted
with a great degree of reluctance to those accusations.
German post-war society showed signs of a mentali-
ty familiar to perpetrators—i. e. the public felt burdened
with the conscience and thus was eager to forget the past
and move forward as soon as possible. e triggered de-
fence mechanism of the German society resulted in re-
placing collective guilt with collective innocence. e gen-
eral belief implied that citizens of the ird Reich had put
their faith and loyalty in the Nazi government and the
ruler by whom they were misled and betrayed [71]. is
rhetoric treats the whole nation as vulnerable, incapable
of thinking or distinguishing between right and wrong,
which in legal terms would make them unt to stand tri-
al. As Frank Buscher claims, “Germans were not interest-
ed in digging into crimes of the past because they were
too afraid that it would be like opening a Pandora’s box”.
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S171
Deeply implicated in the crimes of the Nazi regime were
not only high-ranking ocials in the dierent ministries,
leading industrialists, and the ocer corps of the armed
forces, but also ordinary people who sought employment
in camps and ghettos [72].
4. Adenauer’s Federal Republic: the state and the
public
Over the years, the supposedly strong Allied coalition
proved unsustainable. In 1947, the dierences in opinion
between the United States and Soviet Russia led to a geo-
political conict known as the Cold War, which resulted in
the creation of two separate German states. e German
Federal Republic, with Konrad Adenauer as the Chancel-
lor, was covered by the Marshall Plan—nancial and po-
litical support from the United States. e general policy
of West Germany in the 1950s was avoiding any confron-
tation with the Nazi past. Adenauer’s cabinet was not only
uninterested in chasing Nazi criminals, but also openly
criticised the Allied eorts to bring criminals to justice
by demanding an amnesty for convicted former Nazis.
anks to Adenauer’s intervention, approximately 1500
Germans, who had been convicted and imprisoned in the
Soviet Union, were granted amnesty and returned to Ger-
many. Among them was Prof Carl Clauberg, who was re-
sponsible for sterilisation experiments on Jewish female
prisoners at Auschwitz concentration camp [72, 65]. Ade-
nauer’s politics were a reection of a general trend mani-
fested by the German public, i. e. forgetting the past and
focusing on building a new democratic Germany. Hence,
a double integration was proposed, which allowed for-
mer Hitler’s middle men, including physicians, lawyers,
journalists, etc., back into their professions. During Kon-
rad Adenauer’s tenure, Nazi criminals could avoid any
punishment as long as no charges had been led under
their names for a period of twenty years [72].
e eorts of the Allies to bring Nazi criminals to jus-
tice were abandoned after the Cold War had intensied.
Most of convicted criminals, even those who had been
charged with mass murder, were freed. In 1955, the Tran-
sition Agreement was signed between the US, Great Brit-
ain, France and West Germany according to which those
who had already been prosecuted by the occupying pow-
ers could not be prosecuted again for the same crimes
[73]. e number of prosecutions of Nazi criminals de-
creased drastically from 871 between 1945 and 1950 to 76
between 1951 and 1960 [72, 68].
5. International law v. the German Penal Code
In the 1940s, after the German justice system had been
reactivated, German judges had the choice of wheth-
er they wanted to apply international law or the German
Penal Code of 1871 when putting Nazi criminals on tri-
al [66]. Although the international law that derived from
the Nuremberg Trials was designed to prosecute oences
such as crimes against humanity and genocide, the major-
ity of German jurists decided to stick with the German law
ignoring the fact that it was unsuitable given the severity
of crimes committed in the ird Reich. us, the German
Penal Code eectively worked to the accused’s advantage,
since: 1) there was a strict ban on retroactivity—an act
that was not considered criminal between 1933 and 1945
could not be treated as such in the post-war period; 2) in-
ternationally recognised crimes against humanity and
genocide were not dened in the German Penal Code,
and thus were classied as common murder; 3) the statute
of limitation—20 years for a murder—allowed thousands
of Nazi criminals to go unpunished for their crimes [73].
Another serious concern was the way the law was de-
ned. According to the German law, a murderer was a per-
son who committed the crime on his own initiative, and
the murder was performed out of base motives. us, the
euthanasia killings that had been supposedly performed
as a duty were not considered as acts of cruelty by the
court. e deciding factor between perpetrating and aid-
ing and abetting was an individual’s initiative rather than
the act itself. e German public was in favour of using
the German Penal Code when prosecuting Nazi criminals.
Such court proceedings were more palatable for the pub-
lic if the accused of murder was presented as a psychopath
rather than as an average German citizen following orders.
In the 1960s, television and press reports inuenced pub-
lic awareness worldwide. However, press coverage of Nazi
criminals’ trials in West Germany was far from objective. It
focused on the most gruesome crimes and those individu-
als who had committed those oences were presented as
outcasts. e majority of the accused, however, were por-
trayed as reluctant participants [74]. at way, only mali-
cious individuals were targeted by the judicial system, and
the rest of the society perceived themselves detached from
the Nazi past and Nazi criminals [74].
6. Conclusion
In 1966, when Schumann was being extradited to the Fed-
eral Republic of Germany, the international Jewish com-
munity, and victims in particular, hoped for a smoothly-
run trial and an adequate verdict. eir expectations were
not entirely unsubstantiated, given the high level of pub-
lic awareness regarding Nazi crimes, a strong prosecution
team led by the renowned Fritz Bauer and, after his death
in 1968, by the experienced Johannes Worle, and a con-
siderable number of witnesses who were willing to testify.
All those eorts were insucient due to two factors. First-
ly, the lack of interest in prosecuting Nazi criminals. Years
of Allied occupation, imposing victors’ justice, enforced
denazication and a broadly applied collective guilt re-
inforced the reluctance of the public, the government
and the judicial system to deal with the Nazi past. A sur-
vey conducted shortly after the Auschwitz Trial revealed
that 40% of Germans said “they haven’t heard of the tri-
al” when asked about the Auschwitz court proceedings.
Of the remaining 60%, 40% were keen to “let the grass
grow over the past.” About 70% of the German popula-
tion wished for the trials to be stopped and were against
an extension of the statute of limitation [74]. Secondly,
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S172
the insuciency of the German Penal Code to prosecute
Nazi Criminals. By 1992, approximately 103,823 Germans
had been investigated; of them only 6,487 were prosecut-
ed and 5,513 were convicted, most for non-lethal crimes.
About 7% of those convictions were for crimes against
Jews [73, 66]. In the German Federal Republic, putting
those on trial who had been active in the euthanasia pro-
gramme proved dicult. Karl Brandt, for example, was
indicted and sentenced to death in Nuremberg because
his conduct had been classied as a crime against hu-
manity as dened in Control Council Law No. 10. e
West German judiciary, the government and the public
rejected the possibility of applying the international law
when trying former Nazis. us, Schumann was tried ac-
cording to the traditional denition of murder as stipulat-
ed by the German Penal Code [69]. erefore, one could
assume that, had he maintained good health during the
trial, he would most likely have received a maximum of
six years imprisonment for aiding and abetting, rather
than a life sentence for murder.
Jewish medical ethics during the Holocaust: the
unwritten ethical code
Miriam Offer, PhD, Senior Lecturer in the Holocaust
Studies Program, Western Galilee College, Akko,
Israel
miriamoffer@gmail.com
The Nuremberg Code and ethical questions pertaining
to the history of medicine during the Holocaust
e Nuremberg Medical Trial, from October 1946 to Au-
gust 1947, aroused far less global interest than the previ-
ous trial of the Nazi leaders before the International Mil-
itary Tribunal. Its practical benet, besides bringing a
handful of physicians to justice, was the formulation of
the Nuremberg Code—the rst internationally author-
ised document outlining ethical principles for human
experimentation. Despite subsequent changes (manifest
in the Declaration of Helsinki, the Declaration of Tokyo,
and others), the Code is a fundamental landmark in the
discussion of the binding bioethical principles from after
WWII to the present day. It was an attempt to react to the
inhuman criminality of the Nazi experiments, and to pre-
vent such atrocities in the future [75].
Nevertheless, a re-reading of the Code brings us back
to basic questions regarding the history of medicine dur-
ing the Holocaust. Even though the Code refers speci-
cally to human experimentation, its ten principles consti-
tute a kind of “Ten Commandments” of medical ethics,
notwithstanding disagreements on its dierent aspects.
ese principles, in the spirit of human dignity and human
rights, of physicians’ moral obligations toward patients—
already clear in ancient culture—already pervaded the
Hippocratic Oath and other texts. e apparent need to
reword the clearest principles of universal humanistic
thought in the second half
of the twentieth century,
more than anything else,
raises the cardinal question
about which so much ink
has been spilled: How come
physicians, medical institu-
tions and scientic organi-
sations trampled the most
basic principles of human-
ity in such an extreme and
sweeping manner?
A look at the ethical di-
lemmas confronting the
Jewish physicians and nurs-
es in the ghettos shows the
complexity of the bioethi-
cal issues facing the medi-
cal sta and leadership as
persecuted victims. It shows also that the nature of these
moral dilemmas and decisions was greatly inuenced by
the medical workers’ ethics education. Moral considera-
tions were expressed in extreme situations that confront-
ed dierent groups of medical sta, both the “perpetra-
tors” and the “victims” under the Nazi regime. A humane
ethical system seemingly led to medical ethical dilem-
mas and (albeit tragic) humane decisions, and a racist
ethical system led to cruel acts by physicians, even while
“wearing the cloak” of pseudoscience.
In its historical context, the Nuremberg Code inspires
readers to deepen the study of the history of medicine
during the Nazi period. is eld of research oers an
important observation of the personal and institution-
al moral lows of some medical practitioners and scien-
tists, manifested during this period, and the strengths of
other individuals and groups among medical and health-
care sta, put to the test and forced to deal with tragic di-
lemmas according to outstanding ethical principles. e
Fig. 1 Dr. Adina Blady-
Szwajger worked in the Ber-
son and Bauman Children’s
Hospital in the Warsaw
Ghetto. Ghetto Fighters’
House Archive, 1824
Fig. 2 Dr. Mordechai Lens-
ky, a physician at the Czyste
Jewish Hospital in the War-
saw Ghetto and in the ghet-
to clinics. Courtesy of his
son, Prof. Yaakov Lensky
Fig. 3 Sabina Gürfinkel-Glo-
cer
, a nurse at the Czyste Hos-
pital in the ghetto. Yad Vas-
hem Photo Archive, 3526/4
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S173
study of both sides is paramount to the global bioethical
discussion “after Auschwitz.
e next section describes some of the ethical dilem-
mas that confronted the medical sta in the Warsaw
Ghetto—the largest ghetto. ese and other dilemmas
arose in nearly all the ghettos.
Characteristics of ethical dilemmas in the ghettos
e cruel reality enforced on Jews during the Holocaust
led to terrible moral dilemmas. In the moral luck terms
of philosopher omas Nagel, these dilemmas were a
clear case of bad circumstantial luck, when any mode of
action comes at a heavy moral price [76]. Ghetto physi-
cians faced the most dicult dilemmas. Some of these
are encountered daily by medical sta in normal times
and certainly in emergency medicine or in mass-casualty
incidents. However, ghetto physicians faced dilemmas of
incomparable severity: from tness assessments before
deporting men to forced labour, which amounted to col-
laboration in their almost certain death; to fullling Ger-
man orders to make direct life and death selections from
among their colleagues and patients, between extermi-
nation in Treblinka and work in the ghetto. Physicians in
normal life circumstances are not faced with such dilem-
mas [77: 53–61, 127–43, 465–8, 481–580].
In his book, Moral Dilemmas, Daniel Statman ex-
plores the concept of tragic dilemmas as referring to a
moral choice which comes at the cost of either destroy-
ing the decision-maker, or strongly undermining his life
[78]. Such choices were not unusual for the ghetto phy-
sicians, especially during selections. In the tragic situa-
tions described, even though some medical sta worked
according to the “lesser of two evils” principle, the sourc-
es provide evidence of their continued torment over
whether their decisions were correct. ese were dif-
cult, tragic dilemmas in the full sense of the word. Al-
though many oce-holders in the ghettos, rabbis, and
especially Judenrat members, faced some of these ethical
problems, they were most prominent in the day-to-day
lives of the medical sta.
e dilemma pertaining to active killing was theirs
alone, such as when people begged the physicians to put
their old, hospitalised parents “to sleep” to spare them
from brutal murder by the Germans, who entered the
hospital and shot anyone who was unable to walk to the
Umschlagplatz.
Alongside heroic and courageous acts was poor mor-
al behaviour such as the abandoning of professional du-
ties, shirking obligations and corruption. A physician’s
individual behaviour did not apparently dier from that
of many other ghetto oce-holders: all faced impossi-
ble moral tests. Some withstood them and others failed.
Collectively, however, the situation was dierent. Jewish
physicians made a professional, ethical, moral, and hu-
mane choice: to establish medical services under geno-
cide conditions that had led to epidemics and mortality.
e Jewish medical sta and leaders in the ghetto estab-
lished these systems under their own steam, as persecut-
ed victims, motivated by ethical and moral imperatives
that saw the saving of life as a supreme value. e obli-
gation to heal the sick is so central to Jewish perception,
that even under impossible conditions, they succeeded
in setting up medical services based on modern profes-
sional conceptions [77], including preventive medicine2
[77], hospitalisation3 [77, 79], medical research4 [80, 81],
academic study, and training [82, 83].
e strategies of coping with the ethical dilemmas em-
ployed by the ghetto medical sta must be discussed in
the broader context of the medical systems collective-
ly established by the Jewish physicians. Notwithstand-
ing these tragic dilemmas, as described below, they did
not shirk their collective responsibility, preventing the
collapse of the medical services. Quite the opposite; de-
spite coping with dilemmas in the tragic reality, with re-
inforced ethical and professional commitment to the
Jewish cultural tradition, they attempted to “bring heal-
ing to a drifted leaf5 while suering from the same tor-
ment and diseases as their patients, and as the rest of
their brothers and sisters imprisoned in the ghettos [80].
I suggest distinguishing between two types of dilem-
ma, even though the dierences between them are not
always absolutely clear. One type includes dilemmas in
which, on the one hand, the medical sta were required
or expected to help patients in distress while risking their
own lives. Here the general question is: To what extent
should medical workers endanger themselves to save the
needy? Another type of dilemma does not involve per-
sonal risk, but a conict between values or moral norms.
ese are moral dilemmas, as accepted in contemporary
philosophical discourse. In this sense, dilemmas are sit-
uations in which one faces two conicting obligations,
which cannot both be fullled [78]. e philosophical
literature has debated the question of whether these di-
lemmas exist; is it possible to have two conicting obliga-
tions, from which there is no way out, because either op-
tion will leave the person morally decient [84, 85, 78]?
A study of the medical sta’s dicult dilemmas casts
doubt on the validity of the philosophical stance that de-
nies the authenticity of these dilemmas. e problematic
ethical nature of the situations is not derived from back-
2
e Jewish health organisation, TOZ (Zdrowia Ludności
Żydowskiej), which operated within the Jewish communities in
Poland during the interwar period was particularly well-known for
its advancement of preventive medicine and social medicine for
the weaker sectors of society.
3
Czyste, the large Jewish hospital which served the Jewish and
non-Jewish population in Warsaw, was not located within the
ghetto boundary. e Jews established a replacement institution
in buildings scattered throughout the ghetto, to serve the ghetto’s
patients. In addition, the Bersohn and Bauman children’s hospital,
which operated in Warsaw during the interwar period, continued
to operate in the ghetto.
4
e Jewish physicians in the Warsaw Ghetto, while suering
from hunger along with the rest of the Warsaw Ghetto inmates,
conducted a study of the eects of hunger on the human body
among adults and children. Most of the ndings were documented
and were smuggled to the Aryan side.
5 From a liturgical prayer recited on the eve of the Day of Atone-
ment, the holiest day in the Jewish calendar.
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S174
casting, but was recognised as such at the time. I distin-
guish between “self-endangerment dilemmas” and mor-
al dilemmas in the other sense6 [86, 87].
Dilemmas involving personal risk
Abandon patients to save oneself? When the mili-
tary front advanced towards Warsaw in 1939, the med-
ical workers faced the dilemma of whether to continue
to care for their patients and thus put their own survival
at risk. Many respected professionals tried to save them-
selves. When the Germans invaded Warsaw, fear gripped
the hospital workers. At that time, Dr Amsterdamski
and Nurse Sabina Gürnkel-Glocer were working at the
Czyste Hospital: “Now hell will gape before us,” said Sa-
bina, to which he answered: “Do not despair—Not all the
Jews will be destroyed… the Jewish people will not be de-
stroyed… and therefore we must be strong and save who-
ever we can…” He worked tirelessly throughout the peri-
od. “It was a question of honour for us to help the doctors
and together save those that could still be saved,” wrote
Sabina [88].
is dilemma was especially prominent immediately
before and during the Warsaw Grossaktion of 1942, when,
like everyone else, the medical sta wanted to save them-
selves.
Dilemmas in which medical workers are required to
treat patients while risking their own lives are also dis-
cussed today. For example, the Ethics Board of the Israel
Medical Association has formulated its stance on endan-
gering medical sta. In an emergency, when physicians
are forced into life-threatening situations by caring for
patients, “then the physician, together with other safety
authorities, will evaluate the risk of entering the scene of
the incident versus the obligatory need to save lives” [89].
In other words, the Medical Association does not take an
absolute stance regarding the most appropriate response
in such a case.
e historian Emanuel Ringelblum expressed his ap-
preciation of medical sta and described their altruistic
behaviour in the ghetto: “Earlier we mentioned the… he-
roic stand of the educators and primarily of Dr Korczak
e conduct of the doctors and nurses at the Jewish hos-
pital was similar… a few dozen doctors and nurses stood
guard and did not abandon the patients until the very last
moment. When … more than 1000 patients were loaded
onto the train cars, a small number of doctors and nurs-
es went with them. Such was the behaviour of the people
who were viewed as subhuman by the Nazis” [90].
Risk infection by patients or stop working with them?
e work of physicians and nurses in the ghetto carried
the risk of contracting very serious illnesses to which
they would not normally be exposed. e medical sta
were faced with the dilemma as to whether or not to con-
6 I have written widely about the ethical dilemmas facing the
medical sta in the Warsaw Ghetto and the Šiauliai Ghetto.
tinue their medical duties. When typhus raged through
the ghetto, about 30 percent of the 800 physicians work-
ing there contracted it. e disease claimed the lives of
about eight percent of those who were working in the
Czyste Hospital emergency room, who were especially at
risk. In his memoirs, the renowned scientist, Prof Lud-
wik Hirszfeld, described widespread infection among
physicians and nurses working at the ghetto refugee
centres, many of whom died. e living quarters of the
masses of refugees who ocked to the Warsaw Ghetto
were a hotbed of morbidity and mortality. Dr Lensky’s
descriptions are a window into the dilemmas facing the
physicians; aware of the refugee centre’s terrible condi-
tions, his response to the oer of a post there was am-
bivalent. His wife tried and succeeded in dissuading him
from taking the position, but he was wracked with pangs
of conscience:
“Mixed feelings raged in me, my love for my family was
at odds with my conscience… I was obliged to be with
the refugees… help make them less bitter, rekindle their
hopes, relieve their desperation. I couldn’t fall asleep
that night …” [91].
e Israeli Medical Association’s paper on the physi-
cians’ risk of exposure while treating infectious patients,
reads as follows: “Should the system be unable or unwill-
ing to provide the means… the doctor is not obliged to
endanger himself beyond the limits he shall voluntarily
set upon himself along with his colleagues and other ex-
perts” [89].
Moral dilemmas: conflicting values
Moral dilemmas in the second sense include cases of
several conicting moral requirements, which each in-
volved a bad choice.
Physicians required to perform selections: One of the
most dicult dilemmas was having to decide who would
be sent to the extermination camps. Directors of Jewish
hospitals, senior physicians, and other medical profes-
sionals in the ghetto were sometimes required to per-
form selections from the hundreds of medical workers
and their families employed in the medical institutions,
as well as from among the hospital patients. is meant
implementing the Nazi decrees, and physicians’ direct
and personal involvement in sealing the fate of their col-
leagues. Dr Marek Balin wrote:
“e Jews themselves are obliged to hand their broth-
ers over to death … three prominent physicians had
to make the judgments. ey had… a list of patients’
names. Alongside each name, a (+) sign meant deporta-
tion or death, while a (-) sign meant to remain in the hos-
pital. e doctors stopped at each bed for a longer time
than usual. ey whispered quietly, with anguished voic-
es… Dr. Szenicer was… holding a handkerchief in front
of his face. He not only evaded the staring of patients
but he seemed also ashamed before his colleagues. He
walked through the rooms with his head lowered and the
handkerchief covering part of his face… Terried, Chana
Rosenfeld… grasped the situation as she started crying at
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S175
the moment the (+) sign was being marked alongside her
name. e doctors kept… wiping their own tears7 [92].
In the nal stages of the Grossaktion to deport the War-
saw Ghetto’s Jews to Treblinka, every Judenrat depart-
ment received a quota of people exempt from deportation,
those recognised as workers needed by the Germans. Un-
der these circumstances, senior physicians had to decide
who would receive a “life number.” e exemption selec-
tion criteria were dierent in each department. For in-
stance, senior physicians were left to serve as department
heads; another criterion was saving entire families rath-
er than individuals. When it was decided to spare the de-
partment heads, their wives and children were given “life
numbers” as well. is made sense, but the general work-
ers and some of the ordinary doctors paid the price. Some
felt that as many workers as possible should be saved,
specically individuals without children, but apparently
no principle was adhered to absolutely. Dr Polisiuk, a gy-
naecologist in the Czyste Hospital, writes that the quota
for the hospital wards, which held some 800 people, was
only 200. According to Dr. Polisiuk, the view of the gener-
al public was that the council and the department heads
should not have undertaken this task. ey should have
left it to the Germans, even at the cost of a larger num-
ber of victims. Polisiuk also wrote that it was known that
when the lists were compiled, the power of personal con-
nections would override the value of rights and the work-
ers’ devoted labour of many years; the majority were cer-
tainly doomed to suer. It is clear that the ability to leave
such a limited number of people in the ghetto could not
oer a just solution to such a tragic problem.
Since none of the members of the Judenrat wished to
read out the list, and as many of the workers had request-
ed Polisiuk’s assistance with the task, he agreed with a
heavy heart:
“It was the most tragic moment in my life. While read-
ing out the list, I handed out a death sentence to 600 in-
nocent people: close friends, colleagues… I was obliged
to read through the list several times! ey did not believe
they had not been included…8 [93].
Euthanasia by physicians and nurses during the
Aktions
When the Germans penetrated the hospital and all hope
was lost, some physicians and nurses performed “eutha-
nasia” on their family members, as well as on old people
and children who lay in the hospital.
Blady-Szwajger described the Aktion in the hospital in
her memoirs:
… Doctor, please give my mother an injection. I can’t
do it. I beg you, please. I don’t want them to shoot her
in bed, and she can’t walk.” So I asked her what was in
7
Balin M. Testimony of a physician (Polish). Yad Vashem Archive,
03–441.
8
Notebooks of Dr. Polisiuk, 06.09.1942–07.09.1942, Meruba
[Square], memoires of the Czyste hospital. Ghetto Fighters House
Archive. File 3182.
the syringe and she told me it was morphine… When I
left the room… we took a spoon and went to the infants’
room. And just as, during those two years of real work in
the hospital, I had bent down over the little beds, so now
I poured this last medicine into those tiny mouths… told
them that this medicine was going to make their pain dis-
appear. ey believed us and drank the required amount
from the glass…” [92].
“is is very problematic behaviour,” argues Prof
Steinberg. “Any action of killing a person, even if the mo-
tivation to do so is humane, is still an act of murder”.
e American physician Ralph Yodaiken disagrees: “I
believe that Dr. Blady-Szwajger, who gazed into the wells
of life and death and knowing what was expected, chose
the only option for her beloved patients and allowed
them to die with dignity. Her action should be seen as an
act of resistance par excellence…” [93].
In conclusion
In his memoirs, Dr. Lensky wrote: “Of the 830 physicians,
very few did not measure up morally… But such cases
were rare, and the number of doctors whose deeds would
have been condemned by any society was negligible” [91:
86].
e ethical question was never far from the minds of
health workers, and moral challenges were apparently
one of the dominant experiences of their unique work
under ghetto conditions. Despite the dicult and trag-
ic ethical dilemmas facing each individual worker, the
ghetto medical sta, as a collective, strove to establish
a professional, ethical and humane medical system un-
der unimaginable conditions. In many ways, this system,
with all its dilemmas, was unique and unprecedented in
the history of humanity and of medicine.
In the historical context of the Nazi era, as a “ Ten Com-
mandments” for medical experimentation, the Nurem-
berg Code is a beacon, for both practitioners and pa-
tients, against scientists’ and physicians’ abuse of power.
Adherence to its principles, such as enforcing voluntary
informed consent, preventing harm and human suer-
ing, and preserving the subjects’ freedom to stop the ex-
periment at any stage, is an attempt to ensure against the
repetitious violation of human rights, as perpetrated in
the Nazi medical experiments. In this sense, it can be
said, in retrospect, that the activities of the Jewish medi-
cal sta in the ghettos proves the possibility of uphold-
ing these fundamental principles, even under extreme
conditions. is case study reinforces the spirit of the
Nuremberg Code, which does not lose its validity, even
under the most dicult enforced conditions of mass
atrocities, ethnic cleansing and genocide.
It is also important to note that, in addition to the
medical treatment, hospitalisation and the study of med-
icine, physicians and scientists in the ghettos conduct-
ed valuable research on the inmates’ morbidity. As the
diseases that spread throughout the ghettos were typical
to genocide conditions but rare during normal times, the
sta lacked knowledge of how to treat these phenome-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S176
na. Research was, therefore, necessary to improve treat-
ment methods as well as to document the Nazis’ crimes
for posterity. Prominent research examples are the stud-
ies of hunger and of typhus conducted in the Warsaw
Ghetto. e researchers, who were suering from the
same troubles themselves, did not exercise coercion, did
not cause additional suering, did not worsen the sub-
jects’ state of health, and showed sensitivity toward the
patients and their conditions—thus adhering to the lat-
er Nuremberg Code criteria. Needless to say, the fate of
these medical workers was no better than that of the rest
of the Jews in the ghetto. After their long, exhausting, and
dangerous service to the community, most were deport-
ed to the camps.
One of the thousands of physicians who worked in
the ghettos was Dr Julius Moses, who had been a gener-
al practitioner in Berlin from 1920 to 1932 and a member
of the Social Democratic Party in the Reichstag. In 1930,
when about 75 children died in Lübeck, after receiving
an inadequately tested tuberculosis vaccine, Dr Moses
harshly criticised this appalling medical disaster. In his
role as physician and legislator, with the aim of prevent-
ing a recurrence of such cases, he formulated a series of
guidelines for experimentation on new vaccines and for
medical experiments in general. ey included inter alia
full explanations and informed consent requirements for
clinical trial subjects or their guardians. His recommen-
dations were promulgated by the Reich Health Council
in 1931, but the legislation procedure was aborted with
the Nazis’ rise to power. In the summer of 1942, Dr Mo-
ses was deported to eresienstadt and died there. How-
ever, his ght to uphold these ethical principles was not
in vain. During the Medical Trial, his recommendations
were discussed, alongside other documents, as ethical
standards for performing medical experiments, and ap-
pear to have had great inuence on the formulation of
the Nuremberg Code. [94, 95: 2, 120].
The complicated legacy of the Nuremberg Code
in the United States
Arianne M. Lachapelle-Henry, Priyanka D. Jethwani,
Michael A. Grodin, M.
D., Center for Health Law,
Ethics, and Human Rights at the Boston University
School of Public Health and the Elie Wiesel Center
for Jewish Studies, Boston University, 715 Albany
Street, Talbot Building T3W, Boston MA, 02218,
USA
amhenry@bu.edu
e defendants [most…trained physicians and some…
distinguished scientists]…are charged with murders,
tortures, and other atrocities committed in the name
of medical science… e victims of these crimes …for
the most part are [the] nameless dead… e charges
against these defendants are brought in the name of
the United States of America. ey are being tried by a
court of American judges…and… [it is…important…
that] this Court, as the agent of the United States and as
the voice of humanity, stamp these acts, and the ideas
which engendered them, as barbarous and criminal…
It is our deep obligation to all peoples of the world to
show why and how these things happened…-Edited
excerpt from Telford Taylor’s Opening Statement of
the Prosecution in the “Medical Trial,” Nuremberg,
Germany, 1946 [96]
American roots of the Nuremberg Code
In 1945, the International Military Tribunal (IMT) con-
ducted by the Allied powers including the United States
(US), France, the United Kingdom and the Soviet Union
tried high-level Nazi war criminals for “war crimes” and
“crimes against humanity” [96]. After the IMT, the Al-
lied Control Council gave authority to the US to conduct
twelve additional trials. e rst case was the Medical
Trial conducted with US judges by US prosecutors based
on “landmarks in international law which [were] erect-
ed in Nuremberg [and] rest[ed] on a foundation of legal
procedure which …satised the traditional safeguards
of… American law” [97]. us, although the Medical Tri-
al was considered an international tribunal not “bound”
by US law and only nominally conducted by the US, it was
nonetheless permeated by American jurisprudence and
could be viewed as singularly American [98].
e physician defendants were on trial for murder
committed under the guise of human experimentation,
among other criminal activities. At the close of this crim-
inal tribunal, one would expect an adjudication of guilt
or innocence. However, the judges included in the -
nal decision a nuanced code of ethics of human experi-
mentation subsequently known as the Nuremberg Code.
During the trial, US judges heard evidence of unethical
human experimentation conducted on subjects where
death was the end result. e Nazi doctors, in their de-
fense, presented evidence of internationally-sponsored
unethical research exploiting the vulnerable, particu-
larly prisoners. US judges sitting at Nuremberg were dis-
turbed by what they heard during the tribunal. Appar-
ently, there were no universally-accepted international
ethical guidelines for the protection of human subjects
until the Nuremberg Code. ough the Code was not rel-
evant to the murder carried out by the Nazi doctors, it
sought to prevent future unethical human experimenta-
tion through the protection of human subjects.
e Code has two important principles, the rst of
which is the protection of the rights of the human subject
and the second is the focus on the welfare of the human
subject. Informed consent (Principle 1) and the right to
refuse to participate or terminate participation as human
subjects at any time (Principle 9) underscore the indi-
vidual’s rights in human experimentation [99]. e other
eight principles of the Code focus on the welfare of hu-
man subjects and include the necessity of a comprehen-
sive research design, the assessment of risk to the sub-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S177
ject, and the investigator’s assurance that no imminent
harm or death may befall the subject [99]. e Nurem-
berg Code was to apply to normal, healthy volunteers.
e Code ultimately focuses on voluntary, informed, and
understanding consent as the hallmark to protect the
rights and welfare of the human subject.
Although emerging from the context of the Medical
Trial, the Code itself provides a proscriptive ethical and
legal framework for the future of human experimentation
[100, 101]. e inclusion of “voluntary consent” is a cru-
cial indicator that the Code was indeed intended to be
proscriptive. is is based on the premise that the lack
of informed consent from concentration camp prisoners
was an irrelevant charge to bring against the Nazi doctor-
murderers, given that the victims of these camps had no
chance of self-determination or autonomy, as they were
destined for death. Rather, this principle indicates the
American judges’ intention to safeguard against future
human experimentation abuses [101, 102].
e Code’s emphasis on both informed consent as ab-
solute and the right of the human subject to end an ex-
periment at any time exemplify how its principles are
focused on protecting the individual’s autonomy [103].
e foundational tenet of voluntary informed consent
parallels the US Constitution. Such examples are found
in the Constitution’s Preamble, 4th Amendment, and
14th Amendment, which protect against infringement
of the individual’s inviolability including “unreasonable
searches and seizures” as well as prohibiting any state
from “[depriving] any person of life, liberty, or property,
without due process of law” [104, 105]. Clearly, the Amer-
ican judges “being … steeped in the self-determinism
ideal, so much celebrated in [US] political tradition
wanted their rst principle to safeguard human dignity
and inviolability, in research and civilized life” [101]. Ini-
tially in the US, the Nuremberg Code’s emphasis on safe-
guarding future medical experimentation for the most
part was felt to be unnecessary in the US research con-
text [96, 106].
Reaction to the Code in the US
Renowned Holocaust survivor, Elie Wiesel, hypothesized
that the doctor-murderers of the Nuremberg trial viewed
human beings as abstractions. He astutely captured the
danger in the subjugation of an individual’s humanity,
which is often a risk in conducting human experimen-
tation. Wiesel believed that the legacy of the Nuremberg
Code was to act as a force against scientic hubris and
that “respect for human rights in human experimenta-
tion demands that we see persons as unique, as ends in
themselves” [96, 107].
In the US, medical experimentation had consistently
challenged the ideal of treating human beings as “ends
in themselves,” when human subjects were used sole-
ly for the purpose of creating new knowledge [107]. An-
other factor limiting the Code’s inuence in the US was
medicine’s long-established reliance on the physician as
the sole arbiter of the patient’s/subject’s care and pro-
tection. While there has been a modern progression to-
ward a more duciary doctor-patient partnership, at the
time of the Code’s promulgation there was widespread
consensus among American physicians that the patient’s
compliance was essential to appropriate care. In essence,
physicians had historically relied on a personal moral
adherence to primum non nocere, “rst, do no harm.
Additionally, physicians had used the ethical principle
of benecence to guide them, but tended to “submerge
the patient’s authority” even when augmented with in-
formed consent [108]. e inherent paternalism in physi-
cian decision-making inevitably compromised the indi-
vidual’s autonomy even amidst attempts to observe the
Code’s principles. Ultimately, this contributed to the di-
lution of the strength of the Nuremberg Code.
Moreover, because the Code was formed in response
to the barbarous acts of the Nazis, many in the US medi-
cal and research community avoided the guidelines, be-
lieving the Code was intended for only those perpetrat-
ing violations akin to the defendants in the Medical Trial.
“Human subjects” were brutally tortured, maimed, and
killed at the hands of the Nazi doctors in the name of sci-
entic progress while “…respect for human dignity [was]
totally abrogated” [101]. e revelation of these unspeak-
able acts prompted the US medical and research com-
munity to distance itself from the Code, despite the fact
that the Code’s general principles were intended to curb
exploitation in all human experimentation. Historical-
ly, medical research in the US was often conducted on
the most vulnerable, including children, terminally ill
individuals, women, and the impoverished [101]. e
fact that researchers used these socially disenfranchised
populations as research subjects provides evidence that
Wiesel’s hypothesis of the human being’s abstraction ex-
isted even within the medical community in the US [107].
In essence, the researchers dehumanized these individu-
als due to their social status as a means to an end, rather
than seeing them as “unique” ends in themselves [107].
Contributing to the Code’s dismissive reception in the
US was the belief that the Code’s safeguards applied only
to non-therapeutic research on “healthy” subjects. As
human experimentation extended beyond “healthy” in-
dividuals into the realm of therapeutic research, where
individual subjects with diseases might derive a benet
from the results of or even from participation in research,
the distinction between treatment and research became
obscured. Physicians regarded their research as part of
a treatment plan for a patient-subject, not requiring in-
formed consent. Additionally, as the Code originated
within the context of a criminal trial, it was often viewed
as too “legalistic”; and therefore deemed irrelevant by
US researchers [103]. At the same time, physicians and
researchers believed that its principles were a threat to
medical progress [109]. Nonetheless, ignoring the Code
and its precept of informed, voluntary consent placed in-
dividual human rights in peril. Consequently, signicant
abuses have been perpetrated in the name of medicine
and research throughout post-Nuremberg US history.
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S178
Application of the Code in US federal regulations
Since the time of the Code’s promulgation, medical re-
search has proliferated worldwide, amplifying the po-
tential for research abuses. e increase in US medical
research activity precipitated the necessity for the in-
creased protection of human subjects in biomedical and
behavioral research. e Code’s initial inconsistent in-
corporation into US statutes, regulatory requirements
and policy-making bodies at the federal level demon-
strate that the Code was either applied as if its principles
were “enduring ethical statements,” or were dismissed
as irrelevant because the Code was seen as “narrowly fo-
cused on assessing the activities of specic defendants”
of the Medical Trial [96, 110].
e Code’s principles have largely been adopted into
US federal regulations. e National Institutes of Health
(NIH) adopted ethical, but not legal, guidelines begin-
ning in the mid-1950s that referred to the Nuremberg
Code as the ‘ten commandments of human medical re-
search.’ Subsequently, in 1961, the NIH handbook cited
the Code as a central guiding principle [96, 110]. In 1962,
the Food and Drug Administration (FDA) became in-
volved in regulating research with the introduction of the
Drug Amendment Acts. us, another federal body began
regulating human experimentation, but only within its
purview to regulate FDA-related research. Notable guide-
lines that the FDA and NIH enacted at this time includ-
ed the requirement for research subjects’ consent and the
assignment of experimentation responsibility to the insti-
tution, respectively. ese guidelines “set the tone for fu-
ture federal involvement regulating research. Both sets of
rules view research in a positive light and try to protect
subjects, but not at the expense of hindering research
[96, 110]. Building upon the National Research Act of
1974, federal governmental bodies subsequently estab-
lished an extensive set of regulations for government-
sponsored research by mid-1975 [96, 110]. Within these
regulations were special stipulations on research with fe-
tuses, pregnant women, and in vitro fertilization. In 1981,
the National Commission for the Protection of Human
Subjects of Biomedical and Behavioral Research includ-
ed prisoners and children as special protected research
classes [96, 110]. Both of these sets of regulations go a step
beyond the Nuremberg Code, which does not stipulate
specic principles for special populations. However, sig-
nicant gaps remained in the US regulatory framework
for other vulnerable populations, such as the mentally ill.
In a stark departure from the Code that makes protect-
ing human subjects the obligation of researchers alone,
the federal regulations place responsibility for the pro-
tection of the human subject’s rights and welfare on the
institutions that receive federal funding. For example, In-
stitutional Review Boards (IRBs), who review ethics and
compliance with federal regulations, may allow research-
ers to waive consent in certain situations at the discretion
of an IRB. ese changes make it “seem that non-bene-
cial research could be conducted on a non-consenting
subject, precisely the behavior the Nuremberg Code ex-
plicitly prohibits” [96, 110]. Other citations of the Code in
the US include the 1995 Advisory Committee on Human
Radiation Experiments (ACHRE) report, the 2001 reports
by the National Bioethics Advisory Commission (NBAC),
and the 2011 Presidential Bioethics Commission which
published a report entitled, Moral Science: Protecting
Participants in Human Subjects Research [111]. However,
the Code was not and has not been completely observed
by those conducting research with human subjects.
While the Code’s principles have been robustly adopted
into the contemporary regulatory framework in the US,
the failure to apply the “spirit” of the Code in clinical ap-
plications has resulted in “insucient guidance” to pro-
tect the inviolability of all human research subjects [112].
Application of the Code in US courts of law
Considered “the most complete and authoritative state-
ment of law” on informed consent in human research,
the Nuremberg Code could also potentially be applied in
US courts in both criminal and civil cases [96, 113]. How-
ever, the Code has rarely been utilized in the US legal sys-
tem—a paradox given that it is the most authoritative
statement on voluntary, informed consent [114]. In fact,
no criminal cases have cited the Code since its inception.
Furthermore, in the few civil cases in which the Code has
been cited, there have been no damages awarded for in-
juries to subjects, nor punishments prescribed by law for
researchers who have violated the Code [114].
Nonetheless there exist some notable examples when
the Code has been cited in US courts. A case that raised
the question of whether an involuntarily committed in-
dividual could consent to psychosurgery to treat ag-
gressive behavior (Kaimowitz v. Michigan Dept Mental
Health, 1973) referred to the Code. e court cited the en-
tire Nuremberg Code in its decision and ultimately ruled
that the individual could not give “voluntary, competent,
informed or understanding consent” [114]. is could be
viewed as the court enforcing the Code’s hallmark feature
of informed consent at the state level. In contrast, in a suit
led by a former US soldier who was injured during Cold
War experiments, the US Court of Appeals stated that
“e majority neither endorses nor sanctions a concen-
tration camp mentality… what we are called upon to de-
cide is simply whether the plaintis are entitled to money
damages” [114]. Years later, a federal district court judge
further discounted the Nuremberg Code as a “discussion
document without legal force in the United States” [114].
e US Supreme Court has decided only one case
which referred to the Nuremberg Code. United States v.
Stanley involved an attempt to retrieve records on the
CIA’s program that administered LSD and other agents to
“uninformed human subjects” beginning in 1953 [114].
is was the Supreme Court’s opportunity to determine
whether or not the Nuremberg Code, which was original-
ly formulated by a US military tribunal, at least applied
to the US Army [114]. US courts have consistently ruled
that national security matters supersede the precepts
of the Code [115], despite the fact that the Armed Forc-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S179
es Medical Policy Council (AFMPC), a division of the US
Pentagon, recommended to the Department of Defense
in 1953 that the Code’s principles be entirely adopted in
national security matters regulating human experimen-
tation [115]. e US Supreme Court’s decision to side
with the CIA in United States v. Stanley, in which the CIA
had administered hallucinogens to unsuspecting sub-
jects, again demonstrated that the Code was secondary
to national security. Four justices dissented to the deci-
sion. In her dissent, Justice Sandra Day O’Connor cited
the Nuremberg Code, and stated “…the standards that
the Nuremberg Military Tribunals developed to judge the
behavior of defendants stated that the ‘voluntary consent
of the human subject is absolutely essential’…our Con-
stiution’s guarantee of due process of law guarantees
this much” [114]. e Code has been relegated to a legal
gray area by the courts. In turn, American courts have in-
terpreted the Code’s application in contradictory ways,
thereby complicating its role in protecting the rights of
human subjects.
The Code in the US research context
ere are several concerns associated with the imple-
mentation of the Code in the US research context. By
leading with informed consent, the authors of the Code
were arguably emphasizing its importance. is is its
strength; however, while voluntary, understanding and
informed consent is necessary to protect the subject’s
autonomy and inviolability when conducting human ex-
perimentation, consent alone is necessary but not su-
cient. Informed consent is the grounding principle of the
Code, but the welfare of the human subject is equally im-
portant and arguably certain parameters and research
protocols must be in place prior to ascertaining informed
consent. Subsequent principles of the Code outline other
crucial, prerequisite safeguards, such as a competent in-
vestigator, adequate facilities to prevent harm to the sub-
ject, and a proportional risk-benet analysis which must
be in place before the human subject can be approached
to participate and give consent in human experimenta-
tion. Unfortunately, physicians and researchers often
pay attention to the Code’s leading principle, operating
under the false assumption that informed consent alone
is both necessary and sucient to conduct human ex-
perimentation. erefore, while this rst principle is in-
deed an essential safeguard, it should not overshadow
other ethical requirements of the Nuremberg Code.
US research abuses
Despite the Code’s promulgation in 1947, research abus-
es have persisted in the US. In his seminal 1966 paper,
Ethics and Clinical Research, Henry Beecher compiled 50
studies that were unethical and in direct violation of the
Nuremberg Code. He detailed 22 studies of the 50 that in-
cluded instances of treatment withheld, lack of informed
consent and even death [116]. Beecher insists, “An exper-
iment is ethical or not at its inception; it does not become
ethical post hoc—ends do not justify means. ere is no
ethical distinction between ends and means” [116].
In 1972, it was revealed that the US Public Health Ser-
vice (USPHS) was exploiting 400 poor black men in the
“Tuskegee Study of Untreated Syphilis in the Negro Male.
USPHS investigators followed these men from 1932 to
1972 to study the natural progression of untreated syphi-
lis. Despite treatment in the form of penicillin, which was
considered the standard of care and widely used as early
as the 1950s, the USPHS left these men untreated for the
duration of the experiment [117119].
Another example of research abuse occurred at Wil-
lowbrook State School, an institution for intellectually
disabled children on Staten Island, New York. From the
mid-1950s until the 1970s, investigators infected children
with live hepatitis virus to study the potential for devel-
opment of a hepatitis vaccine. In both Tuskegee and Wil-
lowbrook, the researchers maintained that they were
merely conducting observational studies. In reality, they
were taking advantage of a socially vulnerable popula-
tion under the guise of scientic progress [117].
In 1963, another case of research abuse occurred at the
Jewish Chronic Disease Hospital in Brooklyn, New York
where live cancer cells were injected into 22 patients with-
out written consent. e researchers claimed that oral
consent was obtained, but this did not constitute informed
consent, as the researchers did not disclose that they were
injecting the subjects with live cancer cells. In this case, re-
searchers believed that full disclosure “might agitate [pa-
tients] unnecessarily” and some did not even have capac-
ity to consent [120]. Although the responsible researchers
were found guilty of unprofessional conduct, deceit and
fraud, they attempted to defend themselves by claiming
that they acted according to research customs practiced at
the time, where consent was often not documented [120].
A more recent example of the citation of the Code sur-
faced in the Maryland US Court of Appeals’ August 2001
decision in Grimes v. Kennedy Krieger Institute (KKI). KKI
of the Johns Hopkins University was charged with expos-
ing poor black children to lead paint in order to test eco-
nomical abatement options during its study, Lead-Based
Paint Repair and Maintenance Interventions, conducted
during the 1990s [121]. In delivering its opinion, the Court
stated, “Of special interest to this Court, the Nuremberg
Code, at least in signicant part, was the result of legal
thought and legal principles, as opposed to medical or sci-
entic principles, and thus should be the preferred stand-
ard for assessing the legality of scientic research on hu-
man subjects. Under it, duties to research subjects arise”
[121]. According to the Court, healthy children should not
become participants in “non-therapeutic research” where
there is no direct benet to the child, even with consent
from a parent or guardian [121]. is is a valid concern in
research involving children, as they are a special protected
research class. As such, consent from a parent or guardian
does not necessarily constitute voluntary, informed, and
understanding consent. Moreover, the court recognized
that children involved in this study were especially vulner-
able as they were also economically disadvantaged. With
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present 1 3
S180
comparisons to Tuskegee, the Jewish Chronic Disease
Hospital, and Nazi human experimentation, the Court in-
sisted: “ese programs were somewhat alike in the vul-
nerability of the subjects; uneducated African American
men, debilitated patients in a charity hospital, prisoners
of war, inmates of concentration camps and others falling
within the custody and control of the agencies conducting
or approving the experiments. In the present case, chil-
dren, especially young children, living in lower economic
circumstances, albeit not as vulnerable as the other exam-
ples, are nonetheless, vulnerable as well” [121, 122].
The legacy of the Nuremberg Code in the US
e Nuremberg Code emphasizes the protection of the
individual’s rights and welfare through autonomy, hu-
man dignity and self-determination. ese concepts are
rmly rooted in the international human rights move-
ment, but are also values fundamental to the US, as es-
poused in the US Bill of Rights of the US Constitution.
By embracing the Nuremberg Code’s view of the in-
dividual’s inviolability as sacrosanct, physicians and re-
searchers serve the interests of the individual human sub-
ject as well as the overall goals of society. An antidote to
a mechanistic and atomized view of science and medi-
cine is to put the human rights agenda at the forefront, as
the US judges attempted to do in Nuremberg. If US medi-
cine and its authoritarian roots were to embrace human
rights as superseding scientic discovery, it would serve
as a bulwark against the scientic thrust of depersonaliza-
tion–a thrust that contributed to the egregious torture and
murder perpetrated by Nazi physician-researchers. Un-
fortunately, US history has provided evidence time and
time again that abuses can occur when scientic inquiry
and breakthroughs come at the expense of the individual.
On this 70th anniversary of the Nuremberg Code and
e Medical Trial, we remember the words of Elie Wiesel:
“We must not see any person as an abstraction. Instead,
we must see in every person a universe with its own se-
crets, with its own treasures, with its own sources of an-
guish, and with some measure of triumph” [96].
Acknowledgements: We are grateful to Leonard H.
Glantz, J.D. for his comments on an earlier version of the
manuscript.
Medical ethics in Post-War Germany:
reconsidering some basic assumptions
Volker Roelcke, Prof Dr, Institute for the History
of Medicine, Giessen University, Jheringstrasse 6,
35392 Giessen, Germany
volker.roelcke@histor.med.uni-giessen.de
In international debates on medical ethics, it is frequently
assumed that due to the Nazi past, there are specic, re-
strictive positions regarding euthanasia, human subject
research, and human reproduction in Germany. For ex-
ample, the author of an essay on “e Dilemmas of Ger-
man Bioethics” in the US-American political journal e
New Atlantis wrote about the “burden of history” respon-
sible for the hesitancy to accept new biotechnologies in
relation to medicine and human reproduction. Suppos-
edly, “Germany has enacted some of the strictest bioeth-
ics policies in the world” on euthanasia, experimentation
with human subjects, and “manipulation of nascent hu-
man life” [123]. Others speak of the public discussion in
Germany as being “haunted” by its past [124126]. us,
the impact of the Nazi past on present-day German de-
bates in medical ethics is widely taken for granted. It ap-
pears almost self-evident, and beyond the need for any
further investigation into whether this impact is the
same for all the elds of medical ethics named above, or
whether the references to and consequences drawn from
the past might potentially change over time [123, 126].
It is certainly true that the legal trials of the immedi-
ate post-war years and the public knowledge about med-
ical atrocities had profound repercussions on the eld of
medical ethics in Germany. However, recent historical
work has amply documented that ethical positions and
legal regulations in post-war Germany were not at all ho-
mogeneous and static, but changed considerably over
time. In addition, ethical positions during the post-war
period may not simply be characterised as restrictive for
all the issues mentioned. Rather, the dynamics of change,
and the factors inuencing this change, were quite dier-
ent for the various issues at stake, be it questions of hu-
man subject research, end of life-decisions, or human
reproduction [127]. One of the aims of this contribution
is to illustrate that the story is much more complex than
assumed in the stereotypic image of generally restrictive
post-war German medical ethics, and that in order to
more adequately understand the intricacies and dynam-
ics of the core bioethical issues, actors in the eld should
be aware of this complexity.
Overall, a historical account of post-war medical eth-
ics in Germany is far from being accomplished. It would
have to look at ve spheres of activities:
1. Debates in the public sphere
2. Strategies and statements of professional functionar-
ies
3. Informal “behind the scenes” activities of medical
representatives, health
ocials, and “moral authori-
ties” (e. g. theologians, philosophers)
4. Developments in the emerging sphere of institutional-
ised medical ethics
5. Developments in the legal sphere.
Until now, historical accounts have mainly focused on
the second and the fourth sphere [127, 128]. e follow-
ing will go a step beyond this limited scope by addressing
two aspects:
First, the focus is on the attempts of the profession
in post-war Germany to construct a historical narra-
tive which accounts for the medical atrocities, and at the
same time exonerates the majority of physicians and the
medical profession. It will be argued that medical repre-
history of medicine
Medical Ethics in the 70 Years after the Nuremberg Code, 1947 to the Present
1 3 S181
sentatives to a certain extent succeeded in constructing
such a narrative, and that this enabled the profession to
sustain its comparably strong position in public debates
and health policies.
Second, ethical and legal issues around human sub-
ject research will be addressed by sketching the link be-
tween one of the Nuremberg trials and a signicant “be-
hind the scenes” discussion on the regulation and ethics
of clinical trials at the end of the 1940s. is informal dis-
cussion, I argue, may have had a strong impact on the
late enactment and quite liberal content of the German
Pharmaceuticals Act of the 1960s.
An exonerating narrative of Nazi medical atrocities
In the immediate post-war years, representatives of Ger-
man physicians were deeply concerned about the impact
of the atrocities committed during the Nazi period on the
reputation of the medical profession. Already during the
Nuremberg Medical Trial, in June 1947, the delegates of
the West German Chambers of Physicians convened and
discussed potential consequences and outlines for a fu-
ture code of conduct. ey passed a pledge, the so called
Bad Nauheimer Gelöbnis (Vow of Bad Nauheim), named
after the location of the meeting. e pledge combined el-
ements of the Hippocratic Oath with very explicit and re-
strictive statements on abortion, sterilisation, euthana-
sia, and human subject research [129]. ese norms quite
clearly referred to the historical facts exposed during the
Trial. e Vow in fact preceded the Declaration of Gene-
va of the World Medical Association by more than a year.
It lacked, however, the core sentence of the Geneva Dec-
laration which proclaimed that the health of the patient
is the supreme value to be pursued by the physician. In
practice, the Vow was superseded by the later Declaration.
is remarkable pledge of 1947 has to be understood
as a reaction of the representatives of the profession to
the ongoing Nuremberg Medical Trial. e Trial and the
parallel de-Nazication procedures of the Allies had a
broader cultural dimension—beyond the sentences for
a few individual physicians and functionaries; it seemed
possible to quite clearly judge who was a guilty person,
who had only been opportunistic, and who had been a
victim. us, the process of confronting and analysing
the past was primarily perceived as a legal problem, and
therefore left to the courts. In the courtroom, complex
and interrelated conditions and ramications from the
medical, the political, and the economic spheres were
reduced to the singular question of individual culpabil-
ity. Such concentration on individual behaviour caused,
or at least consolidated, an attitude according to which
Nazi atrocities in general, and medical crimes in particu-
lar were the result of isolated, ideologically minded or
even perverted fanatics. By prosecuting these individuals
in court, it was implied that the burden of the past could
be decreased little-by-little, and nally lifted [130, 131].
In this context of individualising responsibility, and
identifying “real” Nazis, the organised medical profes-
sion succeeded in establishing a specic interpretation
of the past which integrated three features: an explana-
tion for the atrocities, an exoneration of the profession,
and a kind of condensed historical narrative. is inter-
pretation may be summarised as follows: With the Nazi
takeover in 1933, medicine and healthcare fell victim to
the new regime. Nazi ideology was imposed from out-
side—namely the realm of politics—onto the profession
and led to the atrocities of forced sterilisation, system-
atic patient killings and forced human subject research.
ose physicians who were actively involved were few,
and they were fanatic Nazis. In sum, following this inter-
pretation, medicine was instrumentalised and abused
for the ideological agenda of the regime [130, 132].
e implicit message of this historical narrative and
explanatory model was that medicine itself was intrinsi-
cally apolitical, imbued with a clearly-dened, pre-exist-
ing and supposedly universal medical ethos which was
contaminated by the intrusion of outside political forces.
One of the supposed lessons was that in the future, phy-
sicians should defend their autonomy against infringe-
ments from external political instances.
is historical narrative served obvious purposes.
However, already during its emergence in the late 1940s,
it was not consistent with available historical knowledge
[132]. Nevertheless, it met with strong resonance in the
public sphere. In the next decades, medical function-
aries, such as the successive presidents of the German
Chamber of Physicians (Bundesärztekammer), used this
narrative when they were confronted with medicine’s
Nazi past, or in contexts where they sought to avert pol-
icies which appeared to threaten the supposed autono-
my of the profession [132]. Only in 2012 did the German
Medical Assembly (Deutscher Ärztetag) formulate an of-
cial statement, based on up-to-date historical evidence,
acknowledging the responsibility of physicians for medi-
cal atrocities, and urging for continuous self-reection on
the frailties of and temptations for physicians [132, 133].
Regulating human subject research
e period immediately following the Nuremberg Trials
was marked by attempts to “normalise” medical activities
in the realm of both clinical services and research. In this
context, medical researchers were not only concerned
with their public image regarding the ethics of their ac-
tivities; they were also eager to safeguard their scope of
action and to prevent the state from insisting on—as they