Re Flick

CourtNuremberg Court (Germany)
Docket NumberCase No. 122
Date22 m 1947
Nuremberg, Germany, United States Military Tribunal.
Case No. 122
In re Flick and Others.

Jurisdiction — Extraterritorial Jurisdiction — Jurisdiction of United States Military Tribunals in Germany after the War.

Individuals in International Law — Fundamental Rights of — Crimes against Humanity — Nature and Punishment of — Offences against Property in Occupied Territory as Constituting Crimes against Humanity.

Subjects of Laws of War — Individual Responsibility for the Commission of War Crimes.

War Crimes — Punishment of — Principle of Nullum Crimen Sine Lege.

War Crimes — Punishment of — Plea of Necessity and of Superior Orders.

Belligerent Occupation — Respect for Property — Seizure and Exploitation of Public and Private Property — Hague Regulations — Jurisdiction of United States Military Tribunals — Principle of Nullum Crimen Sine Lege — Individual Responsibility for War Crimes — Crimes against Humanity — Pleas of Necessity and of Superior Orders.

The Facts.—The accused Flick was the principal proprietor and active head of a large group of industrial enterprises including coal and iron mines and steel producing plants. The five other accused were leading officials in the enterprises and were close associates of Flick. They were variously charged with participation in actions involving, inter alia: (1) the enslavement and deportation to slave labour of large numbers of civilian inhabitants of countries under the belligerent occupation of Germany, in the course of which the latter were ill-treated, tortured and killed; (2) the use of prisoners of war in war operations and in work having a direct relation to war operations, their ill-treatment and murder; (3) the unlawful seizure and exploitation of public and private property in occupied territory. More particularly, the prosecution alleged: (1) that in March 1941, a parent holding company in the Flick concern secured a “trusteeship of the plants Rombach and Machern in occupied Lorraine (France), which were the property of a French company. … The ‘trusteeship’ was accepted as part of a governmental plan sponsored by the accused and other German industrialists for ultimate transfer to them of the legal title to these and other similar property in France.” The plants in question, which consisted principally of blast furnaces, rolling mills and cement works, were, between March 1941 and September 1944, operated by the Flick concern through a company called Rombacher Huettenwerke. It was, however, established by the evidence that the Flick parent holding company left the plants in better condition than they were at the time of seizure; (2) that for the first eight months of 1943, the Flick concern, together with the Reichswerke Hermann Goering, organized a company called Dnjepr Stahl, for the purpose of exploiting a large group of foundries, a rolling mill and a machine factory situated in Russia and owned by the Russian Government (the industrial output at Dnjepr Stahl consisted of sheet steel, bar iron, structural products, light railroad rails and a small quantity of shell products); (3) and that between October 1942 and September 1944, Flick subsidiary companies operated the Vairogs railroad car plant and engine factory in occupied Riga, which had been expropriated in 1940 by the Russian Government. At the Vairogs plant the subsidiary companies not only manufactured and repaired rolling stock for the German railways but also made nails, horseshoes, locks and other products. It was established by the evidence that when the German civilian employees departed, all the plants were left undamaged.

The defence submitted, inter alia: (1) that the accused were private individuals holding no public official positions within the State, and that as they did not represent the State in any capacity, they could not be criminally liable for violations of international law; (2) that the accused were justified in believing that it would have been both futile and dangerous for them to object to the allocation by superior authorities of civilian forced labour and prisoners of war for employment in their industrial enterprises; (3) that the tribunal had no jurisdiction to try the accused for the offences set forth in Count Three of the Indictment as constituting crimes against humanity since such offences had been committed before September 1, 1939, and had no connection with the war.

Held: that Flick and two other accused were guilty of various charges.1 The other accused were acquitted.

(1) Nature and Jurisdiction of the United States Military Tribunal. “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...

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