 |
| The question remains as to the availability of the defense of
necessity in a case of this kind. The IMT dealt with an aspect of that subject
when it considered the effect of Article 8 of its Charter, which provides:
|
| |
“The fact that the defendant
acted pursuant to order of his government or of a superior shall not free him
from responsibility, but may be considered in mitigation of punishment * *
*” |
| Concerning the above provision the IMT said: |
| |
“That a soldier was ordered
to kill or torture in violation of the international law of war has never been
recognized as a defense to such acts of brutality, though, as the Charter here
provides, the order may be urged in mitigation of the punishment. The true
test, which is found in varying degrees in the criminal law of most nations, is
not the existence of the order, but whether moral choice was in fact
possible.”* [Emphasis supplied.] |
Thus the [MT recognized that while an order emanating from a superior
officer or from the government is not, of itself, a justification for the
violation of an international law (though it may be considered in mitigation),
nevertheless, such an order is a complete defense where it is given under such
circumstances as to afford the one receiving it of no other moral choice than
to comply therewith. As applied to the facts here, we do not think there can be
much uncertainty as to what the words “moral choice” mean. The quoted
passages from the IMT judgment as to the conditions that prevailed in Germany
during the Nazi era would seem to suggest a sufficient answer insofar as this
case is concerned. Nor are we without persuasive precedents as to the proper
application of the rule of necessity in the field of the law with which we are
here concerned.
The case of the United States vs. Flick, et
al. (Case 5), tried before Tribunal IV, involved the dominant figure in the
German steel and coal industry and five of his business associates. They were
charged, among other things, with having been active participants in the
slave-labor program of the Third Reich. The judgment of the Tribunal reviewed
the facts and concluded that four of these defendants were entitled to the
benefit of the defense of necessity. We quote from that judgment because the
facts therein disclosed are strikingly similar to those developed in the trial
of this case: |
| |
“The evidence with respect
to this count clearly establishes that laborers procured under Reich
regulations, including voluntary and involuntary foreign civilian workers,
prisoners of war and concentration-camp inmates, were employed in some of the
plants of the Flick Konzern * * * It further appears that in some
|
__________
* Ibid., page
224
1176 |
. 
