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[initia...] tive to bring about participation in the utilization of
slave labor, no crime has been committed; or, (b) unless a defendant in
the course of the administration of his particular role in the slave-labor
program shows an initiative going beyond the requirements of the cruel
regulations, no crime has been committed. Under this construction Farben’s
complete integration into production planning, which virtually meant that it
set its own production quotas, is not considered as “exercising
initiative.” Even the Flick case did not go so far. Action by a defendant
in requesting the allocation of labor, knowing that compulsory foreign workers
would be assigned, is considered by the majority to be done pursuant to and
under “necessity” and does not result in criminal liability. Under
the majority view a defendant who is a plant manager may willingly cooperate in
the execution of cruel and inhumane regulations, such, for example, as putting
into effect the required discriminations as to food and clothing in the case of
the eastern workers, or putting the miserable workers beyond barbed wire
fences; this was no more than complying with the requirements of the
governmental regulations and, according to the majority opinion, does not
result in criminal responsibility. Similarly, where the evidence establishes
that a defendant was responsible for the erection of a disciplinary camp at a
Farben plant, or participated in the initiation of disciplinary measures
against unruly compulsory workers - there is no criminal responsibility, the
action is protected by the defense of “necessity” as the defendant
did no more than that which the cruel and inhumane regulations required. Slave
laborers might be reported to the Gestapo for punishment as this was required
by the regulations, and the defendant is not considered responsible. It cannot
be successfully contended that this was not done in the Farben plants employing
slave labor. I cannot concur in such results. The coercion exercised by a
totalitarian police state in the form of commands to its citizens should not be
permitted to operate as a complete negation of the opposing command of
international penal law which has erected standards for the protection of basic
human rights. Accessories and those taking a consenting part in the crime of
enslavement should not be afforded such easy means of purging themselves of the
fact of guilt. On the facts proven in this record, I am convinced that the
defendants who were members of the Vorstand were accessories to and took a
consenting part in the commission of war crimes and crimes against humanity as
alleged in count three of the indictment.
Conceding arguendo the
admissibility of the defense of necessity, as a matter of law, it is clearly
not here admissible to result in acquittal of all defendants in the light of
the finding of the majority as to Farben’s initiative at Auschwitz. All
defendants who were members of the Vorstand should share in the responsibility
for the |
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