and criticized that doctrine in his presentation. But, with that one notable omission, the rest of it has a highly familiar ring; when I read it, I had the same "peculiar, uncanny sort of feeling" which Dr. Kranzbuehler's client, Burkart, says he felt whenever concentration camps were mentioned. And it is this kind of law in fact which we are asked to accept as being suited to restore the German faith in justice. In the same breath, we are warned that the "Nuernberg administration of justice" is following a "horrifying erroneous course" which is "bound to end in nihilism." This, we are told, is bound to result from any qualification of the proposition that a man is bound to follow the policies laid down by his government even to the extent of committing what he knows to be serious crimes under recognized general principles of law. It seems to me again that Dr. Kranzbuehler has overlooked some very recent history. Germany has just passed 12 years under a legal regime which required just this unquestioning and unthinking obedience, and which enacted a great number of criminal laws and decrees. I will not say that, under these circumstances, the slavish adherence to Dr. Kranzbuehler's legal precepts ended in nihilism, but it certainly ended in something very shattering and disastrous indeed. I should think that, after such unhappy experiences, defense counsel might at least consider the possible merits of another point of view.

Your Honor, the balance of what we have to say in conclusion will be contained in the briefs. That is all.

X. FINAL STATEMENT BY DEFENDANT FLICK ON

BEHALF OF ALL DEFENDANTS *

PRESIDING JUDGE SEARS: As I had begun to say, the case is now completed so far as the presentation of the evidence is concerned and so far as the argumentation is concerned. The rules under which we are acting allow the defendants to make a statement not under oath, freely, not under oath and not as witnesses, and we are ready to hear the defendants in such order as they see fit. DR. DIX (counsel for the defendant Flick): With reference to this last statement, I would ask the Tribunal to take note of the fact that only Dr. Flick intends to speak and that he is speaking for his associates at the same time.

PRESIDING JUDGE SEARS: Well, the defendant Flick may stand at the counsel's desk. You may stand at the counsel's desk and speak from there.

DEFENDANT FLICK: May it please the Tribunal.

For my friends indicted with me and for myself, I should like

* Complete final statement is recorded in the mimeographed record, 29 November 1947, pages 10970-10973.

to make a final statement. The indictment charges "Flick and others." What is meant by this is stated at the beginning of the opening statement of 7 April and culminates in the sentence, "The defendants are leading representatives of one of the two centers of power in Germany.”

According to the prosecution's own statement this means German industry, and particularly Germany's heavy industry.

I am here as an exponent of German industry. By having sentence passed on me, the prosecution is endeavoring to lend truth to their contention that it was German industry which lifted Hitler into the saddle, which encouraged him to wage aggressive wars, and instigated the ruthless exploitation of the human and economic potential of the occupied territories. By this contention not only am I held to be responsible for all methods of economic war, but also some of my associates, selected more or less arbitrarily by the prosecution.

In this trial the prosecution has not even attempted to prove the decisive part of their thesis, that is, the alleged assistance in the seizure of power and participation in the planning and preparation of aggressive war; but even an unproven contention can have certain effect, especially if it is continuously propagated by press and radio. Nobody could have had a greater interest in a peaceful development than we had. Our colleagues in England, Belgium, and France cannot but confirm that we cooperated with them without reserve, without ulterior motives, and without friction right up to the outbreak of the war. The charge of spoliation in the occupied territories is without foundation. There was no witness from the coal or steel industry of neighboring countries who was able to testify against me. I object to these charges made in such a general form against German industry. I protest against them in particular so far as they refer to me and my friends here accused with me. The evidence has shown that I did in fact do everything in my power to prevent two things, first, the seizure of power by national socialism; second, the outbreak of war. Nevertheless, once this hapless war had broken out, we considered it a matter of course to fulfill our duty to our fatherland. We would feel ashamed had it been otherwise, and had we deserted our sons and brothers who stood before the enemy. Moreover, I protest against the fact that in my person German industrialists are being stigmatized in the eyes of the world as slave owners and spoliators. For the rest, I see no reason to go into any detail, in view of the evidence introduced in this case by the defense. Just as my old and trusted associates know how greatly I regret seeing them involved in this trial, so they, too, thanks to our association over many years, know that I have always endeavored to be an honest

and socially-minded businessman. The fact that I succeeded in this endeavor is, I think, proved both by the course of my own life and by the course of this trial. Nobody of the large circle of persons who know my fellow defendants and myself, will be willing to believe that we committed crimes against humanity, and nothing will convince us that we are war criminals.

PRESIDING JUDGE SEARS: The other defendants waive the right to address the Court, not under oath.

There is nothing further before the Tribunal this afternoon. We will now stand in recess, subject to the call of the Tribunal. I will say for the Tribunal, however, that we shall not expect to come back at least during the next 2 weeks, unless some emergency occurs which requires a session; but when the final session of the Court and the delivery of the judgment will be made, is impossible to say this afternoon.

The Tribunal stands in recess.

XI. OPINION AND JUDGMENT *

PRESIDING JUDGE SEARS: Before proceeding with our decision and judgment the Tribunal wishes to put on record its appreciation of the services rendered by counsel for both the prosecution and the defense in this case. In our American system of forensic jurisprudence, counsel are officers of the Court representing their clients, of course, but also assisting the Court in finding the truth and upholding the integrity of the law. We have so considered the counsel one and all who have appeared before us here. The counsel for prosecution and defense have all performed their professional duties with earnestness, diligence, and ability. They have been of great service to the Tribunal and in no instance has any one of them failed in the loyalest duty or overstepped the limits of honorable service. For the help they have rendered the Tribunal they have our thanks.

I will now read the decision on the motions.

At the close of the proceedings on 8 November, the defendants jointly and severally made a series of motions, among other things attacking the jurisdiction of this Tribunal and asking for the dismissal of the various counts of the indictment as to the defendants charged therein, and seeking to strike from the record hearsay testimony and affidavits on various grounds, and on 12 November defendant Flick moved to strike documents offered by prosecution on rebuttal, and on 14 November defendant Steinbrinck made a further motion.

We have examined all of these motions with care and hereby deny them all except the motion to dismiss the third count which

Tr. pp. 10974-11026, 22 December 1947.

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we will determine in that part of the judgment itself which relates to that count. We find the motions otherwise fully and conclusively answered in the brief interposed by the prosecution in objection to the motion.

In order to avoid any misunderstanding, however, we make these summary statements.

As to the Tribunal, its nature, and competence: The Tribunal is not a court of the United States as that term is used in the Constitution of the United States. It is not a court martial. It is not a military commission. It is an international tribunal established by the International Control Council, the high legislative branch of the four Allied Powers now controlling Germany (Control Council Law No. 10, 20 Dec. 1945). The judges were legally appointed by the Military Governor and the later act of the President of the United States in respect to this was nothing more than a confirmation of the appointments by the Military Governor. The Tribunal administers international law. It is not bound by the general statutes of the United States or even by those parts of its Constitution which relate to courts of the United States.

Some safeguards written in the Constitution and statutes of the United States as to persons charged with crime, among others such as the presumption of innocence, the rule that conviction is dependent upon proof of the crime charged beyond a reasonable doubt, and the right of the accused to be advised and defended by counsel, are recognized as binding on the Tribunal, as they were recognized by the International Military Tribunal (IMT). This is not because of their inclusion in the Constitution and statutes of the United States but because they are deeply ingrained in our Anglo-American system of jurisprudence as principles of a fair trial. In committing to the occupying authorities of the various zones the duty to try war criminals, it is implicit therein that persons charged with crime are to be given a fair trial according to the jurisprudence prevalent in the courts of the power conducting the trials.

As to hearsay evidence and affidavits.—A fair trial does not necessarily exclude hearsay testimony and ex parte affidavits, and exclusion and acceptance of such matters relate to procedure and procedure is regulated for the Tribunal by Article VII of Ordinance 7 issued by order of the Military Government and effective 18 October 1946. By this Article, the Tribunal is freed from the restraints of the common law rules of evidence and given wide power to receive relevant hearsay and ex parte affidavits as such evidence was received by IMT. The Tribunal has followed that practice here.

As to counsel and witnesses.-The defendants have not been

denied the right to be advised and defended by counsel of their own choice. Defendants have not been denied the right to call any witness to give relevant testimony nor has the production of any available relevant document been denied by the Court.

As to the law administered.-The Tribunal is giving no ex post facto application to Control Council Law No. 10. It is administering that law as a statement of international law which previously was at least partly uncodified. Codification is not essential to the validity of law in our Anglo-American system. No act is adjudged criminal by the Tribunal which was not criminal under international law as it existed when the act was committed.

Now I will read the opinion and judgment as to Case 5.

Facing this Tribunal are private citizens of a conquered state being tried for alleged international crimes. Their judges are citizens of one of the victor states selected by its war department. There may well be misgivings as to the fairness of such a trial. These considerations have made the judges of the Tribunal keenly aware of their grave responsibility and of the danger to the cause of justice if the conduct of the trial and the conclusions reached should even seem to justify these misgivings. To err is human, but if error must occur it is right that the error must not be prejudicial to the defendants. That, we think, is the spirit of the law of civilized nations. It finds expression in the following principles well-known to students of Anglo-American criminal law.

1. There can be no conviction without proof of personal guilt. 2. Such guilt must be proved beyond a reasonable doubt. 3. The presumption of innocence follows each defendant throughout the trial.

4. The burden of proof is at all times upon the prosecution. 5. If from credible evidence two reasonable inferences may be drawn, one of guilt and the other of innocence, the latter must be taken.

We cannot imagine that German law contains concepts more favorable to defendants. Any less favorable, we, as American judges trained in Anglo-American criminal jurisprudence, would be reluctant to apply even though this is not an American court but a special tribunal constituted pursuant to a four-power agreement administering public international law.

To the extent required by article 10 of Military Government Ordinance No. 7 the Tribunal is bound by the judgment of the International Military Tribunal (hereinafter referred to as IMT) in Case 1 against Goering et al, but we shall indulge no implications therefrom to the prejudice of the defendants against whom the judgment would not be res judicata except for this article.