. NMT02-T0227
Volume II · Page 227
Be that as it may, no sufficient evidence to that effect has been presented, and a mere presumption is not enough in this case to convict the defendant.
Attention has been given to the brief filed by counsel for the defendant Gebhardt. For the most part it is unnecessary to discuss the theories presented in this brief, for the reason that the main reliance of the defense seems to be that in his connection with the experiments charged in the indictment, Dr. Gebhardt acted as a soldier in the execution of orders from an authorized superior. We cannot see the applicability of the doctrine of superior orders as a defense to the charges contained in the indictment. Such doctrine has never been held applicable to a case where the one to whom the order is given has free latitude of decision whether to accept the order or reject it. Such was the situation with reference to Gebhardt. The record makes it manifestly plain that he was not ordered to perform the experiments, but that he sought the opportunity to do so. Particularly is this true with reference to the sulfanilamide experiments: Gebhardt, in effect, took them away from Grawitz to demonstrate that certain surgical procedures advocated by him at the bedside of the mortally wounded Heydrich at Prague in May of 1942 were scientifically and surgically superior to the methods of treatment proposed by Dr. Morell, Hitler's personal physician. The doctrine, therefore, is not applicable. But even if it were, the fact of such orders could merely be considered, under Control Council Law No. 10, as palliating punishment.
Another argument presented in briefs of counsel attempts to ground itself upon the debatable proposition that in the broad interest of alleviating human suffering, a state may legally provide for medical experiments to be carried out on prisoners condemned to death without their consent, even though such experiments may involve great suffering or death for the experimental subject. Whatever may be the right of a state with reference to its own citizens it is certain that such legislation may not be extended so as to permit the practice upon nationals of other countries who, held in the most abject servitude, are subjected to experiments without their consent and under the most brutal and senseless conditions.
We find that Gebhardt, in his official capacity, was responsible for, aided and abetted, and took a consenting part in medical experiments performed on non-German nationals against their consent in the course of which deaths, maiming, and other inhuman treatment resulted to the experimental subjects. To the extent that these experiments did not constitute war crimes they constituted crimes against humanity.
