30-04-1995 Article, International Review of the Red Cross, No. 305
THE NAZI DOCTORS AND THE NUMREMBERG CODE
Medical experiments on human beings
In a work entitled The Nazi Doctors and the Nuremberg Code - Human Rights in Human Experimentation ,[1 ] George J. Annas, Professor of Health Law and Director of the Law, Medicine and Ethics Program at Boston University Schools of Medicine and Public Health, and Michael A. Grodin, Associate Professor of Philosophy, Medicine and Public Health, and Associate Director of the Law, Medicine and Ethics Program at Boston University Schools of Medicine and Public Health, retrace the role of Nazi doctors in medical experiments on human beings, particularly on detainees in concentration camps. Using American and German archives, they describe the trial of twenty of these doctors and three of their accomplices who appeared before the American Military Tribunal in Nuremberg between October 1946 and August 1947.
In their study, the authors observe that the experiments carried out by the Nazi doctors stemmed from the practices of nationalist physicians who, even before the 1920s, belonged to the racial hygiene movement. In 1929 the National Socialist Physicians'League was founded to coordinate Nazi medical policy and, by January 1933, nearly 3,000 doctors, i.e. 6 per cent of the profession, had joined the League. Its policy concentrated mainly on three areas:
- the " Sterilization Law " , which allowed the forcible sterilization of anyone suffering from " genetically determined " illnesses, including feeble-mindedness, schizophrenia, epilepsy, genetic blindness, deafness and alcoholism;
- the Nuremberg Laws, which excluded Jews from citizenship and prohibited marriage or sexual relations between Jews and non-Jews;
- euthanasia programmes for patients judged to be incurable.
The authors make a point of showing the extent to which the medical community was involved in the Nazi programme of human experimentation, saying that the 23 accused who appeared before the Nuremberg Tribunal represented only a small percentage of the perpetrators - doctors and non-doctors - of experiments on human beings.
During the Doctors'Trial in Nuremberg, the prosecution pointed out that there had been hundreds of thousands of victims and, drawing on original documents from the archives of the concentration camps and on testimony given, it came to the conclusion that at least 11 types of experiments had been carried out, notably into the effects of high altitude and low pressure, freezing, malaria, bone regeneration and transplantation, sterilization and typhus.
The Doctors'Trial led to the establishment of the Nuremberg Code. It sets out the basic conditions and ethical standards under which experiments may be carried out on human beings. In the latter part of their book, the authors concentrated on the influence of the Nuremberg Principles on the subsequent development of international law, American law and modern medical research.
It is of interest to recall that after the Doctors'Trial, and in the absence of diplomatic relations between the Federal Republic of Germany, on the one hand, and Poland and Hungary on the other, the ICRC acted as a neutral intermediary between these countries from 1960 to 1970 on behalf of nationals of the latter two who had been subjected to what were designated as pseudo-medical experiments in the Nazi concentration camps and received financial compensation from the Federal Republic, via the ICRC, to help ease their plight.
From 1961 to 1972, a Neutral Commission appointed by the ICRC awarded 1,701 survivors of pseudo-medical experiments assistance totalling DM 50,845,000. However, in 1972, numerous requests from Polish victims had not yet been examined by the Neutral Commission. In November 1972, a compensation agreement was signed at ICRC headquarters between the Government of the Federal Republic of Germany and the Government of the Polish People's Republic for the Polish victims of pseudo-medical experiments carried out in Nazi concentration camps during the Second World War. In accordance with this agreement, the Government of the Federal Republic of Germany paid DM 100 million to the Polish Government to be allocated to the victims of pseudo-medical experiments who had not yet received any financial aid.[2 ]
WAR AND LAW SINCE 1945
The British historian Geoffrey Best has written a work that affords new insights into war and its limits as defined by the law. In War and Law Since 1945 [3 ] he undertakes to show the relationship between civilization and war. His basic premiss is that civilization always seeks to impose restrictions on the violence of war in order to reduce to a minimum the resulting loss of life and destruc tion of civilian property. The author is interested above all in whether civilization succeeds in this: do the restrictions the law lays down actually exert a moderating influence on those who wage war, and do they make military operations less cruel and provide broad protection for those affected by the fighting? In short, to what extent are the rules of international humanitarian law actually reflected in practice?
This is not the first time that Geoffrey Best has ventured into this legal domain. In Humanity and Warfare - the Modern History of the International Law of Armed Conflicts (London 1980) he laid the basis for a more comprehensive view of international humanitarian law than can be accomplished by means of a purely rule oriented analysis of existing texts. Taking the European Enlightenment as his starting point, Best told the recent history of humanitarian law. In his new 400 page book he continues his study of that law's place in history and explains the latest developments, casting new light on the provisions applicable today. The many cross-references concerning both military and general history as well as an incredible wealth of factual material make this book an interesting read. Best describes himself as a historian who specializes in the law of war and endeavours to explain things as clearly as possible. He explicitly disclaims the mantle of the lawyer, to whom he ascribes a limited and one-sided view, and reaches out to the non-specialist, more general reader to describe international humanitarian law as it really is.
Part I of the book sets the stage for his account of modern humanitarian law by giving a historical analysis of the ideas from which it stemmed. Best begins with Jean-Jacques Rousseau and ends with the war-crimes trials in Nuremberg and Tokyo. For example, he reminds his readers that the international humanitarian law applicable today derives almost exclusively from European and Mediterranean sources. Despite its regional origin, the well-developed European system of humanitarian law has spread worldwide, probably because the ideas and principles on which it is based do not seem alien to non-European cultures and civilizations but contain solutions to problems that arise in like or at least similar fashion everywhere, namely how to limit the violence of war so that survival is ensured.
Most of the book is devoted to the law's development since the Second World War: Part II, entitled " Reconstruction of the Laws of War, 1945-1950 " , is centred on the making of the four Geneva Conventions of 1949, whilst Part III, " Law and Armed Conflict since 1950 " , gives particular attention to the two Additional Protocols of 1977. For the law, the end of the Second World War prompted many changes, and the author endeavours to help us see the pattern that emerged. The founding of the United Nations, the adoption of its Charter as the basis for international law, the hearing finally given to demands for effective international protection of human rights, the war-crimes tribunals in Nuremberg and Tokyo and the recasting of international humanitarian law in the 1949 Geneva Conventions are but the most important elements in that pattern. It would be foolish to view these developments in isolation and the author gives an absorbing account of how each influenced the other. Best makes the relationship between protection of human rights and the rules of international humanitarian law particularly clear: he speaks of an enriching alliance between the two systems, with both aspiring to protect the human being in extremis . As we know, Article 3 common to all four Geneva Conventions unmistakably enshrined and convincingly legitimized this alliance. As a counterexample Best cites Article 5 of the Fourth Geneva Convention, which disregards the most fundamental human rights demands by allowing protected p ersons to be held incommunicado in occupied territory, and this despite the then very recent tragic experience of such unacceptable practices during the Second World War. The reader learns something of the background to this aberration by the lawmakers of 1949.
The table of contents for the two main sections of the book reads like a list of the legal issues that arise time and again when it comes to actually implementing international humanitarian law. The general reader will learn a great deal, not only about the rules themselves but also about the practical problems involved in their transposition into legal reality. The author has assembled much factual material from the Second World War and also from the 1990-91 Gulf War. Experts in international humanitarian law will find much stimulating discussion but nothing that will add substantially to their understanding of the Geneva Conventions or their Additional Protocols. Best largely shares the prevailing views on the principal issues raised in connection with these six humanitarian treaties and with the rules of customary law. But the book is enlightening and at times very impressive, for instance the author's remarks on the prohibition of perfidy - a perfect example of the insights that can be gained from an analysis penned by someone who is " more than a lawyer " .
The international law expert may nevertheless wonder at times whether the often proclaimed broader approach really does yield so many new insights. He then also wonders whether sometimes too much is being understood', thereby merely justifying the status quo . An example is the disappointing commentary on the 1980 Weapons Convention, which can hardly be described as anything even half-way approaching an adequate remedy for such abominable practices as the use of anti-personnel mines. He may also be startled by the somewhat sup erficial treatment, and ultimately negative assessment, of 1977 Additional Protocol II (on non-international armed conflict). Has Best been deserted by his sense of political and historical perspective when he judges a text to be unsatisfactory merely because it lays down too few specific rules? In Protocol II, has not political pressure brought into being a humanitarian treaty adopted by consensus and which, precisely because of its simplicity, has some chance of being complied with by the parties to civil war?
Geoffrey Best's new book gives much food for thought to anyone interested in humanitarian law. It is well worth reading.
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THE GULF CRISIS
From prohibition of the use of force to its authorization [4 ]
Mr Sayegh's work is based on the thesis that he wrote for his doctorate in law soon after the second Gulf War. It was devoted not to the " war " but to " crisis " - something that may seem surprising to jurists unaccustomed to considering such concepts. The author has nevertheless done justice to his subject, aided by his knowledge of Arabic, French and English, as can be seen from the bibliography and the list of sources consulted. The study is intended to " help explore the development of the use of force and the changes that this has brought about in the United Nations system " (p. 26).
The chronology placed in the early pages of the study (pp. 1619), even before the introduction, shows us the orientation of the author's research, which is confined to the " crisis " that lasted from 2 Au gust 1990 (date of the invasion of Kuwait) to 16/17 January 1991 (beginning of the war against Iraq).
As we know, this was a period of unprecedented activity on the part of the United Nations Security Council, which adopte a series of resolutions, the first (resolution 660 of 2 August 1990) condemning the invasion and the last (resolution 678 of 29 November 1990) authorizing the use of " all necessary means " to implement the previous resolutions.
To explain and analyse the " crisis " as a whole, Mr Sayegh looks at the history of the complex relations between Iraq and Kuwait, identifying the regional and international considerations involved. The first part of the book (pp. 31275) sets out the basic elements of this history, going back to the 18th century and thus enabling the reader to measure the full significance of the August 1990 invasion, the various reactions which it triggered and the main arguments put forward by Iraq to justify its action against Kuwait (historic rights, economic aggression and assistance to a newly installed and friendly Kuwaiti government). According to the author, these arguments have no legal basis. Since the way the crisis developed cannot be explained by legal considerations alone, other factors must be cited to help the observer understand the reactions of Washington and London in particular, whose economic, political and strategic interests in the Gulf were affected and who immediately acted on the basis of their alliances, in addition to the action taken within the United Nations system. Despite the differences that exist between the former type of action and the latter, the two can be reconciled under Chapter VIII of the Charter itself.
The author divides the crisis into three stages: the first marked by resolution 660, the second by resolutions 661, 665, 666, 667 and 670 and the third by resolution 678. Despite a certain " conciliatory dimension " in r esolution 660, the escalation option prevailed, beginning with economic coercion (resolution 661 of 6 August decreeing the embargo) before proceeding to military coercion (resolution 665 of 25 August authorizing the blockade and particularly the above-mentioned resolution 678).
These two forms of coercion are examined in the second part of the study, entitled " The developing crisis gradual legalization " . The author analyses resolutions 661, 665 and 678, but also considers other texts, such as Articles 42 and 51 of the United Nations Charter and Security Council resolutions 664, 667 and 674. In noting certain similarities between resolutions 665 and 678, Mr Sayegh observes that by adopting the latter text, " the Security Council gradually relinquished its essential role of maintaining peace and security, by delegating its authority to States " (p. 492) and by giving the coalition " an unlimited mandate to implement resolution 660 and the subsequent resolutions " (p. 496). This is the inevitable consequence of the fusion between the centralized reaction as expressed by the Security Council and the decentralized reaction orchestrated by Washington. Given the author's decision to confine his study to the " crisis " , the book ends with an interesting chapter on resolution 678 (pp. 475502), in which he states that in authorizing the use of force the Security Council acted on the basis of neither Chapter VIII nor Articles 42 et seq. of the Charter. Moreover, resolution 678 goes beyond Article 51 on the right of self-defence, and the resulting situation is one of " self-help with support from one's allies " , rather than of self-defence with support from one's allies, a fact which casts doubt on its legitimacy under international law (p. 500). The political consequences of that resolution are examined briefly, and the author concludes by broaching issues connected with the dialectic betwee n law and force, as well as other questions both retrospective (end of the Cold War and its implications) and prospective (relations between Iraq and Kuwait).
It is nevertheless regrettable that the concept of " crisis " , despite the fact that it draws on other disciplines such as history and political science and thereby enriches the work, has restricted the author to the area of jus ad bellum and has even led him to assert that resolution 678 also implied a kind of " frozen jus in bello " (p. 501). For under international law this " crisis " is the continuation of an international armed conflict which broke out on 2 August 1990 and made applicable the relevant provisions of jus in bello. From that date onward, the human consequences of the conflict were immense in Kuwait and Iraq and even elsewhere (the plight of the civilian population, internees, prisoners of war, foreign nationals, damage to property, effects of the embargo and the blockade, etc.).
Nevertheless, the abundant and very useful information provided, the analysis of the role of the Security Council and of some of its relevant resolutions, and the detailed account of the positions of the main protagonists in the " crisis " are presented with clarity and precision, and this makes Mr Sayegh's work a valuable tool for those interested in studying this major conflict, the implications of which will mark international relations for a long time to come, going far beyond the regional context or that of relations between two neighbouring Arab States.
DÉRIVES HUMANITAIRES: ÉTATS D'URGENCE ET DROIT D'INGÉRENCE
Humanitarian Action off Course: States of Emergency and the Right to Intervene
Now that the UNOSOM II troops have withdrawn from Somalia - amid quite harsh criticism from the press - the work Dérives humanitaires: états d'urgence et droit d'ingérence [5 ] is even more highly recommended owing to the clarity of its structure and arguments.
Published as the first issue of Nouveaux Cahiers de l'IUED by the Graduate Institute of Development Studies in Geneva, this book of approximately 150 pages contains a multidisciplinary collection of essays on the subject of intervention - or interference[6 ] - on humanitarian grounds. The introduction, entitled Propos, with explanatory comments by Marie-Dominique Perrot, the editor of the publication, is followed by four sections: Lignes ( " Main Themes " ), Controverses ( " Controversial Aspects " ), Paroles ( " Interviews " ) and Points d'appui
( " Reference points " ).
Lignes begins with an essay by the jurist Bernhardt Graefrath, Ingérence et droit international ( " Intervention and International Law " ). Addressing the legal aspects of intervention, Graefrath points out that the problem of intervention on humanitarian grounds arises whenever it becomes necessary to breach the barrier of national sovereignty to help those who are in distress ... the scenarios are generally complex, with clear cut cases rare (p. 27).
In a very compact essay, Origine de l'idéologie humanitaire et légitimité de l'ingérence ( " The origin of humanitarian ideology and the legitimacy of intervention " ), Gilbert Rist questions the ideology of imposed intervention - interference - on humanitarian grounds. He is of the opinion that the values of " universalism " , " individualism " and " survival of the fittest " , as proclaimed in Enlightenment philosophy and in positivism, reflect an unmistakably Western ideology (pp. 367). Furthermore, by its association with standard Western thought, such an ideology " forms part...of the characteristic thinking of Western modernity which makes it possible to leitimize an unjustifiable action by claiming that it has indisputable value " (p. 45).
This same humanitarian " interference " - a contradiction in terms according to Rist - is the subject of MarieDominique Perrot's essay L'ingérence humanitaire ou l'évocation d'un nonconcept ( " Humanitarian interference', or the invoking of a non-concept " ). She too is of the opinion that imposed intervention - interference - and humanitarian action each belong in totally different categories, concluding that, unless human lives are at stake, to link them is unacceptable to the social order because " everything happens as though the humanitarian powers wanted to share and promote sacrosanct values without taking the usual ritual precautions " (p. 61).
Raisons d'Etat et raison humanitaire ( " Reasons of State and humanitarian rationale " ) is the title of Jacques Forster's essay, which goes directly to the point in addressing the problem of competition for humanitarian reasons, indicating the realities of such competition as well as the threat it poses to humanitarian action. Referring to the new role of the United Nations, Forster examines State humanitarianism, concluding that humanitarian action must neither be replaced by nor integrated into political action.
In his Ingérence utile et manipulée ( " Useful and manipulated intervention " ), François Piguet analyses the involvement in Somalia. Noting that aid always arrives too late, he asks whether, when all is said and done,
" structural emergency constitutes an adequate response to the decay of socio-economic structures in certain countries and the resultant conflicts " (p. 95).
In the Controverses section, Fabrizio Sabelli voices his disagreement with Marie-Dominique Perrot in his essay L'ingérence humanitaire entre religion et politique ( " Humanitarian intervention: between religion and politics " ). In his opinion, in sanctioning the concept of (imposed ) intervention an attempt is made " to gradually eliminate every obstacle - and the State is a sizeable one - which hinders economic power from realizing its goal of a worldwide uniformity of conscience and institutions " (p. 99).
Referring to the essay by Gilbert Rist, Christian Comeliau poses the question: Le bon samaritain a-t-il un avenir? ( " Is there a future for good Samaritans? " ). In view of " the tragic and terribly efficient consequences of modernity " , he considers humanitarian action to be a necessity, " to avoid disruption of incalculable dimensions " (p. 102).
The Paroles section contains interviews with Paul Grossrieder, ICRC Deputy Director of Operations: Le CICR face à l'ingérence humanitaire ( " The ICRC vis-à-vis (imposed) intervention on humanitarian grounds " ); Hans Schellenberg, Section Head of Swiss Development Cooperation: Entre noningérence et besoin d'aider: l'humanitaire d'Etat ( " Between noninterference and the need to provide aid: State humanitarianism " ); Jean-Philippe Rapp, television news journalist for Télévision Suisse Romande: L'ingérence humanitaire et les médias ( " Intervention on humanitarian grounds and the media " ); and lastly, Yves Audéoud, Head of the Africa Department at Caritas Suisse: Savoir ou ne pas savoir intervenir, le cas de la Somalie ( " The wisdom to intervene or not: the case of Somalia " ).
These interviews are indicative of the highly important role played by the media in interventions which could be classified as interference on humanitarian grounds. In addition, Grossrieder rightly points out that nowadays the problem is not so much that of going into a country but of taking action once one is there. In his opinion, the early warning system rarely prevents war. For Hans Schellenberg, (imposed) intervention - or interference - consists in providing aid where everyone else has already done so, consequently forgetting about other victims, while the contrary involves placing humanitarian principles before political considerations. Jean-Philippe Rapp draws attention, in passing, to " the highly conventional language used by (media) professionals who are often more intolerant tha t the general public " (p. 123). On the other hand, for Yves Audéoud, " humanitarian aid is a very practical concept, since it is a means of using emotions to the advantage of domestic political considerations " (p. 130).
The final section, Points d'appui , consists of an essay by Delphine Bordier, Ingérence humanitaire: un débat ( " Humanitarian intervention: a debate " ), which contains a carefully considered summary of the leading opinions expressed on humanitarian intervention/interference. Observations by Mario Bettati, Bernard Kouchner, Cornelio Sommaruga, Jean-Christophe Rufin, Rony Braumann and others provide a highly useful overview for a debate that continues to generate ideas and opinions. Afterwards comes a bibliography, along with background information on the training and professional status of the contributors to this book. This is a welcome addition, the only criticism being that it has been placed at the end rather than along with the author's name at the beginning of each essay.
Readers may be surprised by the critical tone of these essays. This is, however, the purpose of the collection which, given the title Enjeux ( " What is at stake " ), seeks to demystify as well as highlight the workings of power " which at times have become unfamiliar to us " . Consequently, the authors of this brief collection offer us a lesson in humility, their response in keeping with a properly scientific approach to the subject.
1. George J. Annas and Michael A. Grodin, The Nazi Doctors and the Nuremberg Code - Human Rights in Human Experimentation , Oxford University Press, Oxford, 1992, 371 pp. plus lists, a diagram and photographs.
2. In this connection, see " On behalf of victims of pseudo-medical experiments - Red Cross action " in IRRC , No. 142, January 1973, pp. 3-21.
3. Geoffrey Best, War and Law Since 1945 , Clarendon Press, Oxford, 1994, 434 pp.
4. Selim Sayegh, La crise du Golfe: De l'interdiction à l'autorisation du recours à la force , Librairie Générale de Droit et de Jurisprudence, Paris, 1993, 544 pp.
5. Dérives humanitaries: états d'urgence and droit d'ingérence (Humanitarian Action off Course: States of Emergency and the Right to Intervene), ed. Marie-Dominique Perrot, Institut Universitaire d'Etudes du développement, Geneva (Paris: PUF), April 1994, 163 pp. (in French only).
6. The customary English translation of the French term " ingérence humanitaire " is " humanitarian intervention " . Literally, however, " ingérence " would be translated as " interference " . As the book is largely concerned with this connotation, the terms interference or " imposed intervention " have been used where necessary to facilitate understanding of the thoughts expressed in this book review.