In 1942 the conditions in the German Army and in the Medical Services of the Wehrmacht became intensified only insofar as with the beginning of the campaign against the Soviet Union new difficulties presented themselves in this sphere, too. In the campaigns against Poland and France it had been possible to master the wound infections by the usual surgical means, but the difficulties in the war against the USSR increased beyond all measures. It is unnecessary to examine the reasons for this more closely here. It is clear that they resulted from the great distances and poor traffic conditions, but they were also caused by climatic conditions prevailing there.

The fighting power of the German Army was so affected by the heavy casualties that it was impossible to allocate a correspondingly large number of experienced surgeons to the main dressing stations in order to control bacterial wound infection with surgical measures.

During the presentation of evidence the difficult situation in which the German armies found themselves in the winter of 1941-42 on the Moscow front and in the south around Rostov was repeatedly stressed. Here it was demonstrated clearly that the German Wehrmacht, and with it the German people, were involved in a life and death struggle.

The leaders of the German Wehrmacht would have neglected their duty if confronted with these facts, had they not attempted to solve, at any price, the problem as to which chemical preparations were capable of preventing bacterial wound infection and, above all, gas gangrene, and also whether effective means could be found at all. Whatever the answer to this question was, it had to be found as soon as possible in order to avert an imminent danger and to throw light on a question which was important to the individual wounded soldier as well as to the striking power of the whole army. After the failure of all attempts to solve the problem through clinical observation of incidental wounds and other methods, and, in view of the particularly difficult situation and especially of the time factor, there was nothing left but to decide the question through an experiment on human beings. The responsible leaders of the German Wehrmacht did not hesitate to draw the conclusions resulting from this situation, and the head of the German Reich, who was at the same time Commander in Chief of the German Wehrmacht, gave orders for a final solution of this problem by way of large scale experimentation.

Let us examine the legal conclusions to be drawn from this situation as it existed in 1942 for the German Wehrmacht and therefore for the German state—in particular regarding the assumption of an existing national emergency.

The problem of emergency and the specific case of self-defense has been regulated in almost all criminal codes in a way applicable only to individual cases. The individual is granted impunity under certain conditions when “acting in an individual emergency arising for himself or others”. The administration of justice and legal literature, however, recognize that even the commonwealth, the “state,” can find itself in an emergency, and that acts which are meant to and actually do contribute to overcome this emergency may be exempt from punishment.

1. First of all, the question has been raised whether the conception of self-defense, conceived to cover individual cases, can be extended to include a state self-defense, meaning a self-defense for the benefit of the state and the commonwealth. The answer to this question was a unanimous affirmative.

2. The same reasoning, however, as applied to self-defense is also applicable to the conception of an emergency, as embodied, for example, in Section 54 of the German Penal Code and in almost all modern systems of penal law. These provisions, too, were originally conceived to cover individual cases. But, using them as a starting point, legal literature and the administration of justice arrive at a recognition in principle of a national emergency with a corresponding effect. With regard to the definition of the concept of an emergency generally given in the penal laws, the application of these provisions to the state, while justified in itself, can only be effected in principle.

When the idea of an emergency is applied to the state and when the individual is authorized to commit acts for the purpose of eliminating such a national emergency, here, as in the case of the ordinary emergency determined by individual conditions, the objective values must be estimated. The necessary consequences of conceding such actions on the part of the individual must be that not only is he absolved from guilt, but moreover his acts are “justified”. In other words, the so-called national emergency, even though it is recognized only as an analogous application of the ordinary concept of emergency in criminal law, is a legal excuse. But what does “application” in principle to the cases of national emergency mean? Whether a national emergency is “unprovoked” or not, whether, for example, the war waged is a “war of aggression” can obviously be of no importance in this connection. The existence of the emergency only is decisive. The vital interests of the commonwealth and the state are substituted for the limitation of individual interests. Summarizing, we can define the so-called national emergency as an emergency involving the vital interests of the state and the general public which cannot be eliminated in any other way. As far as such emergency authorizes action, not only may a legal excuse be assumed but a true ground for justification exists.

I shall examine later how far an erroneously assumed national emergency, a so-called putative emergency, is possible and is to be considered as a legal excuse. What consequences arise from this legal position in the case of the defendant Karl Gebhardt?

1. As proved by the evidence the general situation in the various theaters of war in the year 1942 was such that it brought about an “actual”, that is, an immediately imminent danger to the vital interests of the state as the belligerent power and to the individuals affected by the war. The conditions on the eastern front in the winter of 1941-42 as they have been repeatedly described during the submission of evidence created a situation which endangered the existence of the state, through the danger of wound infection and the threat to the survival of the wounded and the fighting strength of the troops arising therefrom.

It must be added that the past World War was fought not only with man and material but also with propaganda. In this connection I refer to the statements of the defendant Gebhardt in the witness stand as far as they concern information given to him by the Chief of Office V of the Reich Security Main Office, SS Gruppenfuehrer Nebe. This information shows that at that particular time the enemy tried to undermine the fighting spirit of the German troops with pamphlets describing the organization and material of the German Wehrmacht Medical Service as backward, while on the other hand praising certain remedies of the Allied Forces, for instance penicillin, as “secret miracle weapons”.

2. The assumption of a state of national emergency presupposes that the action forming the subject of the indictment was taken in order to remove the danger. By this is meant the objective purpose of the action, not just the subjective purpose of the individual committing the action. The question, therefore, is whether the sulfanilamide experiments were an objectively adequate means of averting the danger. This, however, does not mean that the preparations really were an adequate means of expertly combatting the danger. According to the evidence there can be no doubt that these assumptions really did exist.

3. Finally, there must not be “any different way” of eliminating the national emergency. One must not misunderstand this requirement. Not every different way, which could be pursued only by corresponding violations, excludes an appeal to national emergency. The requirement mentioned does not mean that the way of salvation pursued must necessarily be the only one possible. Of course, if the different possibilities of salvation constitute evils of different degrees, the lesser one is to be chosen. It must also be assumed that a certain proportion should be kept between the violation and the evil inherent in the danger. In view of the fact, however, that in the present case many tens of thousands of wounded persons were in danger of death, this viewpoint does not present any difficulty here.

According to the evidence there can be no doubt that a better way could not have been chosen. On the contrary, it has been shown that in peacetime as well as in wartime everything was tried without success to clarify the problem of the efficacy of sulfanilamides. And the fact, too, that prisoners were chosen as experimental subjects who had been sentenced to death and were destined for execution, and to whom the prospect of pardon was held out and actually granted cannot be judged in a negative sense. This fact cannot be used as an argument when examining the legal viewpoint, because participation in these experiments meant the only chance for the prisoners to escape imminent execution. In this connection I refer to the explanations I have already given in connection with the so-called probable consent.