 |
| [Whar...] ton’s “Criminal Law,” which contains in
volume I, chapter III, part VII, subdivision 126, the following significant
statement: |
| |
“The law of cases of
necessity is not likely to be well furnished with precise rules; necessity
creates the law, it supersedes rules, and whatever is reasonable and just in
such cases is likewise legal.” |
| It follows therefrom, that necessity as a plea of defense makes
inapplicable also the aforementioned provision of Control Council Law No. 10,
and it is very significant in this respect that the Tribunal IV in Case No. 5
(U. S. versus Flick et al.) assumed the same viewpoint. I may
quote from the judgment the following passage (Flick case, vol. VI, this
series, p. 1200): |
| |
“In our opinion, it is not
intended that these provisions are to be employed to deprive a defendant of the
defense of necessity under such circumstances as obtained in this case * * *.
This Tribunal might be reproached for wreaking vengeance rather than
administering justice if it were to declare as unavailable to defendants the
defense of necessity here urged in their behalf. This principle has had wide
acceptance in American and English courts and is recognized
elsewhere.” |
On the basis of the aforementioned observations the plea of necessity
requires that a defendant acted under a “clear and present danger.”
It is the position of the defense that the peculiar circumstances under which
all of the defendants lived in the former Reich after the Nazis came to power
constitute by themselves such a “clear and present danger,” and that
therefore the defendants on the grounds of said peculiar circumstances may
advance the plea of necessity in all cases where the defendants by omitting a
specific activity or by interfering with the activity of some other person or
group of persons would have been in clear opposition to measures or a program
adopted by the Nazi authorities.
This particularly holds true with
regard to the so-called Nazi slave labor program with all its consequences, but
can just as well be set forth with regard to other activities covered by other
counts of the indictment. Again I may refer in this respect to the judgment in
the Flick case, because in my opinion the peculiar circumstances under which
the German industrialists including these defendants lived at that time in
Germany cannot be described more emphatically than in the following passage on
pages 10,993 and 10,994 of the mimeographed transcript (pp.
1200 and
1201, vol. VI, this
series) |
| |
“We have already discussed
the Reich reign of terror. The defendants lived within the Reich. The Reich,
through its hordes of enforcement officials and secret police, was always
‘present,’ ready to go into instant action and to mete out savage and
imme- [...diate] |
986 |
. 
