The Nuremberg Medical Trial: The Holocaust and the Origin of the Nuremberg Medical Code (review)

The Doctors' Trial was the first of the "subsequent trials" held by the Americans at Nuremberg after the International Military Tribunal (IMT), the major trial of Nazi war criminals. Since the mid-1990s, the academic community has dramatically increased attention to both the Doctors' Trial and the Nuremberg Code. That attention is, I think, related primarily to a renewed interest in the origins of the concept of human rights, the origins of American medical ethics, and the protection of research subjects in the context of the globalization of medical research. For anyone interested in the first two of these issues, Horst H. Freyhofer's book provides a solid and well-researched overview and introduction, concentrating as he does on the legal theory of the trial itself, and the specific roles and views on medical ethics of the three physicians who aided the prosecution.

The IMT was the world's first multinational trial in which judges from a variety of nations (in this case, the major allied powers, the United States, the Soviet Union, England, and France) applied international law to judge violations of war crimes, crimes against humanity, and crimes against peace. That landmark trial resulted in the articulation of the "Nuremberg Principles," which have become a cornerstone of international law: (1) there are such things as war crimes and crimes against humanity (e.g., murder, torture, slavery, genocide); (2) individuals can be held personally and criminally responsible for committing them; and (3) following the law of one's country or "obeying orders" is no defense.

After the IMT's conclusion, the United States conducted twelve additional military tribunals in its sector of occupation; the Doctors' Trial (1946–47), in which twenty-three physicians and scientists were tried, was first. The judges consisted of American civilian judges, the prosecution consisted of military and civilian lawyers, and the basic rules applied combined U.S. law and the law of the IMT. There was no jury, but the judges had to find guilt beyond a reasonable doubt.

The primary defense that the Nazi doctors offered was that they were engaged in legitimate medical experiments that were militarily necessary, and that they had been ordered to perform these experiments—including the lethal high-altitude experiments that simulated a rapid descent and the freezing experiments that simulated a bailout in freezing water—by their superior military officers. A major part of this defense was to endeavor to show that even if the Nazi concentration camp experiments had been different in scale, they were not different in kind from the military and prison experiments performed by Americans themselves.

Freyhofer devotes much of his discussion of the trial to the testimony of the prosecution's chief medical expert, Dr. Andrew Ivy, one of the leading American researchers of his day who had been delegated by the American Medical Association (AMA) to aid the prosecution. Ivy was subjected to brutal cross-examination by the defendants themselves and at times appeared either uninformed or evasive, especially on the subject of prison research in his own state of Illinois and on the development of AMA guidelines on human experimentation (produced only shortly before the Doctors' Trial itself). Reading from the transcript of the trial alone can give the impression that Ivy's testimony had damaged the prosecution's case. But transcripts alone never tell the entire truth—and it is unfortunate that the judges threw the Army filmmakers out of the court shortly after the trial started (because they were too disruptive), because there is now only the transcript to rely on.

In their judgment, which sentenced seven defendants to death, all of whom were executed, the court articulated a forward-looking ten-point human rights code for future experiments on humans. The most famous and influential provision of this code is its first principle, requiring the informed...