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throughout the Farben organization. I cannot agree with the assertion
that these defendants had no other choice than to comply with the mandates of
the Hitler government. Had there been any real will to resist such
comprehensive participation in the crime of enslavement, the defendants,
possessing superior knowledge in their respective complicated technical fields,
could no doubt have avoided such participation through a variety of devices of
such imperceptible nature as to avoid the drastic results now portrayed in the
posing of this defense. In reality, the defense is an after-thought, the
validity of which is belied by Farben's entire course of action. To assert that
Hitler would have “welcomed the opportunity to make an example of a Farben
leader” is, in my opinion, pure speculation and does not establish the
defense of necessity on the facts here involved.
The defense of
necessity as accepted by the majority would, in my opinion, lead logically to
the conclusion that Hitler alone was responsible for the major war crimes and
crimes against humanity committed during the Nazi regime. If the defense of
superior orders or coercion, as directed in the Charter of the IMT, was not
recognized in the case of the principal defendants tried by that Tribunal as
applied to defendants who were subject to strict military discipline and
subject to the most severe penalties for failure to carry out the criminal
plans decreed and evolved by Hitler, it becomes difficult to ascertain how any
such defense can be admitted in the case of the present defendants. The IMT
judgment embraces no doctrinal defense of necessity by governmental coercion.
That decision, it seems to me, constitutes complete negation of any such
theory. Nor do I consider the precedent established by Military Tribunal No. IV
in the case of the United States. vs. Flick et al., (Case 5)
persuasive in its recognition of the defense of “necessity.”* Such a
doctrine constitutes, in my opinion, unbridled license for the commission of
war crimes and crimes against humanity on the broadest possible scale through
the simple expediency of the issuance of compulsory governmental regulations
combined with the terrorism of the totalitarian or police state. The essence of
a truly effective system of international penal law lies in its applicability
to the acts of individuals who are not privileged to disregard the overriding
commands of international law when they come in conflict with the contrary
policies or directives of a state not desiring to abide by the principles of
international law. For these reasons, I have no hesitancy in rejecting the
conclusions reached in the Flick case on this asserted defense and cannot agree
with the majority in its application to the facts here proven.
In
effect the majority opinion holds that, regardless of the extent of Farben's
participation in the slave-labor program, unless a particular defendant can be
shown to have (a) exercised unusual initia- [...tive] |
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Volume VI, this series,
pages 1187-1223.
1310 |
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