Fact check: False claim that Nuremberg Code prohibits mask mandates

·6 min read

The claim: The Nuremberg Code says 'mandating masks on the citizens of a nation' is a war crime

As the highly contagious omicron coronavirus variant spreads around the country, several states have mask mandates in place. Some social media users say they violate a set of research ethics dating back to World War II.

As evidence, a Jan. 3 Instagram post claims to show a section of the Nuremberg Code.

"In no case should a collective agreement or the consent of a community leader or any other authority, substitute for an individuals (sic) informed consent," it reads. "Leaders should be aware that mandating masks on the citizens of a nation and preventing their access to food, healthcare, transport or education if they don't comply, is a war crime."

The post accumulated more than 400 likes within a few days, and the claim has been shared across Facebook and Instagram.

More: COVID-19 mask guide for omicron surge: Why N95, KN95 masks are so much more effective than cloth

But as independent fact-checking organizations have reported, it's wrong. The Nuremberg Code, which resulted from the prosecution of Nazis after World War II, does not mention face masks – and its provisions don't apply to mask mandates in the U.S.

“The claim that this violates the Nuremberg Code is 100% false," I. Glenn Cohen, deputy dean of the Harvard Law School, said in an email.

USA TODAY reached out to the Instagram user who shared the claim for comment.

A family wearing face masks walks through Union Station in Los Angeles, California, Jan. 5, 2022.
A family wearing face masks walks through Union Station in Los Angeles, California, Jan. 5, 2022.

Nuremberg Code doesn't mention face masks

Between 1945 and 1949, trials aimed at holding the Nazis accountable for the Holocaust were held in Nuremberg, Germany. During one of those trials, known as "the Doctors' Trial," several doctors and administrators were charged with war crimes for conducting forced medical experiments on concentration camp inmates, according to Harvard Law School’s Nuremberg Trials Project.

The Nuremberg Code was born out of that trial. Today, it is a foundational set of research ethics for medical experimentation.

But it doesn't mention face masks.

Fact check: COVID-19 vaccine mandates don't violate Nuremberg Code

The text in the Instagram post appears to stem from a letter sent to Connecticut state lawmakers in January 2021. In the letter, Dr. Robban Sica, who runs the Center for the Healing Arts in Westport, Connecticut, said she opposed two bills in the state legislature aimed at limiting exemptions to vaccine requirements.

Her letter is similar – but not identical to – the post's text.

"Human beings are sovereign and as such have the right to choose whether or not to undergo a medical procedure," Sica wrote. "This is not just my opinion, but directly from the Nuremberg Code: Article 6, Section 3, which states 'in no case should a collective agreement or the consent of a community leader or any other authority, substitute for an individual’s informed consent.'

Special access for subscribers! Click here to sign up for our fact-check text chat

"Leaders should be aware that mandating a medical intervention on the citizens of a nation and restricting rights to education or other essential human rights if they don’t comply, is a war crime."

But that passage does not appear in the Nuremberg Code. The quoted portion of the text stems from Article 6, Section 3 of the United Nations' Universal Declaration on Bioethics and Human Rights, a framework for member states to develop bioethical standards.

USA TODAY reached out to Sica for comment.

Mask mandates don't violate Nuremberg Code

The Nuremberg Code is not legally binding in the U.S. And even if it were, experts say mask mandates would not constitute a war crime.

"It’s preposterous to equate mask mandates with Nuremberg Code violations – even if the Nuremberg Code had been enacted into U.S. law," Peter Jacobson, director of the Center for Law, Ethics and Health at the University of Michigan, said in an email. "There’s nothing remotely experimental about wearing masks."

The first paragraph of the Nuremberg Code says the document pertains to "certain types of medical experiments on human beings." Its first provision is that the "voluntary consent of the human subject is absolutely essential."

Fact check: Post about surgical masks' effectiveness against COVID-19 is missing context

Katherine Drabiak, an associate professor at the University of South Florida who specializes in health law, told USA TODAY in an email that, in the U.S., informed consent "is required for all medical interventions." That includes everything from surgery to aspirin, she said.

But mask mandates are a very different thing.

"The Nuremberg Code governs clinical research, not public health orders," Sharona Hoffman, a professor of law and bioethics at Case Western Reserve University, said in an email. "It provides guidance regarding 'experiments,' which isn’t what mask mandates are."

More: Is the Omicron surge nearing an end? Your questions about Omicron answered

The Instagram post's claim that mask mandates constitute a war crime is not based in fact, either.

"War crimes are behaviors that occur in the course of armed conflict," Hoffman said. "The pandemic is a lot of things but not an armed conflict."

Anti-vaccine advocates have previously misused the Nuremberg Code to claim it prohibits COVID-19 vaccine mandates. USA TODAY rated that claim false, as Americans who get vaccinated are not part of a medical experiment.

Our rating: False

Based on our research, we rate FALSE the claim that the Nuremberg Code says "mandating masks on the citizens of a nation" is a war crime. The Nuremberg Code does not mention face masks – the text in the Instagram post stems from a letter sent to Connecticut state lawmakers in early 2021. The Nuremberg Code, which is not legally binding in the U.S., deals with medical experiments and does not apply to mask mandates, experts say.

Our fact-check sources:

Thank you for supporting our journalism. You can subscribe to our print edition, ad-free app or electronic newspaper replica here.

Our fact-check work is supported in part by a grant from Facebook.

This article originally appeared on USA TODAY: Fact check: Nuremberg Code doesn't say mask mandates are a war crime