The Nuremberg Code-cited by most legal experts but ineffective against the powerful medical, pharmaceutical and military lobbies
The Nuremberg Code is the “most complete and authoritative statement of the law of informed consent to human experimentation.”33 It is also “part of international common law and may be applied, in both civil and criminal cases, by state, federal and municipal courts in the United States.”34 But when applied to cold war national security and to the Gulf War, the Nuremberg Code has proven to be legally powerless. Law professor and expert on experimentation law for over twenty years, George Annas explained:
“Even when the Nuremberg Code applies directly we have never taken it seriously. We say that the rights of the individual are outweighed by national security concerns. This has been true even where those concerns are unclear or unarticulated, as where the experiments are carried out in secret and produce death and permanent disability. . . . when medical progress has been invoked, ethics continues to take a backseat to expediency.35
The Nuremberg Code has its’ beginnings in the Nuremberg Doctors’ Trial in 1947. The trial of twenty German doctors, charged with war crimes and crimes against humanity focused on the infamous human experiments on unconsenting prisoners in the Nazi concentration camps during World War II. The judgment concludes with the ten point code of human experimentation ethics, the Nuremberg Code. The first rule is that the voluntary consent of the human subject is absolutely essential.36
The first rule of the Nuremberg Code is included in the current federal regulations on experiments. "The Common Rule" which is today adopted by eighteen federal agencies, are the federal rules that cover both classified and unclassified experiments and include the cornerstone of human experimentation law, informed consent of the research subject.37 While the Nuremberg Code has had far reaching effects, it was seen as “good code for barbarians but an unnecessary code for ordinary physicians.”38
The Nuremberg Code became part of international common law, an indication of its importance. The prohibition against torture in Article 7 of the International Covenant on Civil and Political Rights, states that “no one shall be subject without his free consent to medical or scientific experimentation.”39 Most experts view the Nuremberg Code as a significant, yet symbolic document. The highly regarded law professor M. Cherif Bassiouni regards human experimentation as a serious violation “of fundamental human rights affecting life, physical integrity and personal liberty.”40,41 Bassiouni believes that a code of ethics does not go far enough, as the history of the Nuremberg Code has shown. Bassiouni described unlawful human experimentation as a crime against humanity and a crime under international law.42 Bassiouni unsuccessfully proposed that the United Nations adopt a specific criminal Covenant on Human Experimentation in the 1980s.43 He included the Draft Convention for the Prevention and Suppression of Unlawful Human Experimentation in his 1999 International Criminal Law casebook.44
Bassiouni has commented on the powerful influence of the pharmaceutical lobbies on international experimentation law proposals.
In its work, the Sub-Commission adopted a resolution that would have authorized a Special Rapporteur to ‘prepare a study on the current dimensions and problems arising from unlawful human experimentation.’ The resolution was referred to the Commission on Human Rights for action or consideration. It seems, however, that no further steps were taken.45
Bassiouni believes one possible explanation is that representatives of certain countries feared such a convention would infringe on the practices of their pharmaceutical industries. Bassiouni’s decades-long work and endorsement of international experimentation law is a further indication of its acceptance.46
Annas explained the conflict between the Nuremberg Code and national security priorities in the 1950s and 60s:
The wartime mentality expressed by the CIA and the Army to justify its LSD experiments, and the Army to justify its atomic bomb exposure experiments, is substantially identical to one of the major defenses presented by the Nazi physicians at Nuremberg. Remarkably, the Nuremberg Code appears to have had no effect on medical researchers even in the 1950s.47
The Nuremberg Code was cited by the Pentagon in the “Wilson Memorandum” signed by Secretary of Defense, Charles E. Wilson on February 26th, 1953.48 The Armed Forces Medical Policy Council presented the memo which described a policy for human military experiments including “the principles and conditions laid down as a result of the Nuremberg trials.”49 But as Moreno described in his book on secret experiments, the military culture never accepted this policy and it was largely ignored until the 1960s, when public and military human experiment scandals forced changes in federal rules and regulations.50 In 1978, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research published ethical guidelines including some of the Nuremberg principles.51 Moreno stated “These [Nuremberg] principles are still the touchstone for human research ethics in the United States, including that which is conducted by national security agencies.”52
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