“*** the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law." Fear and Coercion-The Facts If the evidence which has been offered on the ground of fear and coercion is insufficient legally, it is also singularly unconvincing factually. Certainly the defense of fear or coercion advanced by a defendant in a criminal case is an affirmative defense upon which the burden of going forward must be sustained. But the prosecution does not wish to take a pedantic attitude on technical doctrines. Not only is there absolutely no plausible evidence that the defendants committed the acts with which they are charged under the influence of fear; rather, we think, the record makes it clear beyond doubt that no such influence played any part. If we cast a backward glance at the history of the Flick enterprises, it will be seen that they began to take form as a substantial industrial concentration shortly before 1920, and that their growth can be traced through the next 25 years to the collapse of the Third Reich in 1945. The first half of this period was the democratic era of the Weimar Republic. Jews were not persecuted, and their property was not Aryanized. There was no Gestapo, and Himmler was unknown. Their plants were worked by German labor. All of a sudden, halfway through this period, there was a violent change in the social and political atmosphere. The defendants had to do business with a wholly new set of political leaders. Extraordinary and shocking new doctrines became common currency. After the war broke out, thousands of their workmen were drafted and the problem of labor supply became acute. Within 2 or 3 years, well over a third of their employees were foreigners. Many of these were conscripted slave workers. By using the defense of fear and coercion, the defendants have at least implied that some of these extraordinary developments were unwelcome to them. The defendants were respectable, wealthy men with extremely wide contacts, both within and without Germany. Their operations involved an enormous volume of correspondence and record keeping. The inference is compelling, we believe, that if the defendants were really opposed to the shattering changes in German social and political life which came in with the Third Reich, some tangible evidence of this opposition, other than their own statements in this trial, could and would be produced. But the available docu ments and the witnesses who have testified tell us of no such opposition except a lurking worry that the Nazi regime itself enter the field of business or unduly encumber private enterprise by regulations. Not a single document has been introduced which reflects any opposition of or alarm at the rise of dictatorship, the abolition of liberty, the degrading persecution of Jewry, the overrunning of neighboring countries, or the enslavement of millions of workers. Of all the witnesses that the defendants have called, not one has testified that the defendants clearly opposed these things, or, indeed, that they were much concerned about them. On the contrary, the proof as to the defendants' conduct during the years 1932-45 is overwhelming that their relations with the masters of the Third Reich were excellent. This conclusion stares one in the face from every corner of the record and every effort that the defendants have made to obscure this fact has failed in the face of the documentary evidence. There is no need again to thumb the dossier-Keppler Circle, Himmler Circle, SS membership, favored status with Goering, as testified to by Gritzbach, Petschek, Rombach, BHO-from start to finish this is a record of successful and profitable collaboration with the men these defendants say they feared. Speaking of the period just after Hitler came to power, Hermann Rauschning has written: "The old upper classes wanted to remain on top. Bared of any shame or dignity, they clung to their positions, following all the Party doings they were told to follow anything not to lose their positions." Reading this, one is forcefully reminded of Lindemann's testimony that if Flick left a "political visiting card" with Himmler, it was probably because he wanted to "maintain his position." To speak of "fear and coercion" on the record in this case is, we believe, an insult to the intelligence; these men "howled with the wolves" because they ran with the pack. *The Voice of Destruction (1940), page 99. CONCLUSION Dr. Kraus in his brief, and the other defense counsel, upon a number of occasions, have suggested that the defendants were helplessly trapped in a criminal maze. This point has been especially stressed with respect to the slave-labor charges in count one of the indictment. Armament orders, we are told, were allocated by the State to the Flick plants; they could not have been filled without using the foreign slave labor which the State also made available. What could the defendants have done? If they had refused to employ the labor or failed to fill the orders, their plants would have been taken over by someone else, the laborers would still have been enslaved, and the orders would have been filled. Why, we are asked, should Flick or the other defendants have sacrificed themselves to a futile martyrdom? We have expressed our view that, in the light of the record in this case, these questions are highly academic. There has not emerged the picture of a Flick who, even assuming the State would not have harmed him, would have preferred to see his plants stand idle in order to avoid the stigma of slave labor. We doubt that the defendants ever devoted much thought to the perplexing questions posed by Dr. Kraus, and we are certain that they have never been preoccupied with the possibilities of martyrdom. Nevertheless, this question merits reflection. The answer is, we submit, not so difficult as would appear at first blush. The question assumes the existence of a highly difficult and dangerous situation without paying any regard to how that situation came about. Germany would not have launched the war if it had not been known that armament orders would be filled; slave laborers would [not] have been brought to Germany if it had not been known that industrialists would use them to fill the armanent orders. Flick and others like him did not suddenly wake up one morning to find themselves in this desperate predicament; on the contrary, they worked themselves into it over the course of many years. We may well answer the question with another: If the defendants and others like them had not given money in furtherance of Hitler's election in 1933, if they had not curried favor with Himmler and Goering, if they had not carefully woven themselves ever closer into the economic hierarchy of the Third Reich, if they had not subordinated everything else to the maintenance of their leading positions, would they have ever found themselves faced with the problem which Dr. Kraus' rhetorical question poses? This is a situation, in fact, which is encountered in criminal law time and time again. A succession of slips, mistakes, and minor offenses often leads a man into a desperate situation in which he is confronted with grave risks if he does not continue to walk the path of crime. Obviously, the acute dilemma which we are asked to suppose confronted these defendants would have been an even greater dilemma for Himmler or Goering or Goebbels, or anyone in the Third Reich except Hitler. Surely it is true that if Himmler had suddenly been overcome by remorse, say, in 1941, undoubtedly someone else would have stepped into his shoes and acted much as Himmler did for the remaining years of the Third Reich. And it may be doubted whether Himmler would have been allowed to settle down peaceably to repent his sins. In short, if we are to give the defendants the benefit of the doubt and assume that they have ever felt any qualms concerning the course upon which they had embarked, they have only themselves to blame. Dr. Kraus' question has often been asked before, and has often been answered; one answer has been given in the judgment of the International Military Tribunal: 1 "Hitler had to have the cooperation of statesmen, military leaders, diplomats, and businessmen. When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing. That they were assigned to their tasks by a dictator does not absolve them from responsibility for their acts. The relation of leader and follower does not preclude responsibility here any more than it does in the comparable tyranny of organized domestic crime." But there is perhaps a more fundamental answer to Dr. Kraus' ethical problem. Unfortunately, this is a most imperfect world and frequently a violent world. Everywhere and every day, men and women are subjected to stress and strain and temptation and threats. It is a very lucky man who goes through life without ever being confronted with a situation where he must show some degree of courage in order to avoid behaving in a shameful fashion. During the past 8 years, countless men and women of many nations have been required to face danger and death at the risk of being held criminally answerable if they failed to meet the test. I know of no reason why these defendants should not be held answerable by the same standards that countless thousands of far more deserving men and women have measured up to. It is, to be sure, an unhappy shortcoming of mankind that civilized standards of behavior are not self-sustaining, and that they must be continually reinforced by a system of reward and punishment. It gives no pleasure to me or, I am sure, to any member of my staff, to ask that these defendants be punished for what they have done. But the record in this case leaves us no alternative. The distinguished French jurist, M. de Menthon, has reminded us that: 2 “*** like all ethical rules, those which should govern international relations will never be definitely established unless all peoples succeed in convincing themselves that there is definitely a greater profit to be gained by observing them than by transgressing them. That is why your judgment can contribute to the enlightenment of the German people and of all peoples." GENERAL TAYLOR: That concludes the statement, Your Honor. 1 Ibid., Volume I, page 226. 2 Ibid., Volume V, page 426. 955487-52-68 1043 C. Extracts From the Closing Statement for Defendant Burkart * DR. KRANZBUEHLER (counsel for defendant Burkart): Your Honors. "The essence of war is violence; moderation during war is nonsense." These words of English Admiral Lord Fisher in his memorandum to the First Lord of the Admiralty, Winston Churchill, dated May 1914† might seem cynical at a time when, in reaction to the horrors of war, the use of violence is abhorred and when some forms of violence are only too easily called "criminal." I nevertheless quote these words of the English Admiral, as they contain in the briefest form the basic principle which governs the actual practices of war. † Quoted from Der Handelskrieg mit U-Booten [The Commercial War with Submarines], published by the Marine Record Office, Mittler and Son, Berlin, volume I, page 157. Even in international law this theory hardly undergoes a perceptible weakening. To prove this I should like to refer to one authoritative source, that is, to Oppenheim. He expressed the above-mentioned principle of the English admiral in the following words: "Victory is necessary in order to overpower the enemy: and it is this necessity which justifies all the indescribable horrors of war, the enormous sacrifice of human life and health, and the unavoidable destruction of property and devastation of territory. Apart from restrictions imposed by the Law of Nations upon belligerents, all kinds and degrees of force may be, and eventually must be, used in war, in order that its purpose may be achieved, in spite of their cruelty and the utter misery they entail. As war is a struggle for existence between states, no amount of individual suffering and misery can be taken into consideration, however great it may be. The national existence and independence of the struggling state is a higher consideration than any individual well-being." + † Oppenheim-McNair, International Law, (4th Ed., London, 1926), volume II, page 123 [not an exact quotation]. The perception of the essence of war should make one thing quite clear: If it is a matter of establishing whether a certain form or concomitant of the waging of war violates international law, the question whether an individual suffered to a small or great * Transcript pages 10470-10571, 25 November 1947. |