Nuremberg Trials




Self Defense and Necessity

Dr. Aschenauer, speaking for the defendant Ohlendorf and such others whose cases fall within the general pattern of the Ohlendorf defense, declared that the majority of the defendants committed the acts with which they are charged --
"(a) In presumed self defense on behalf of a third party. (Putstivothilfe is the technical term in the German legal language).

(b) Under conditions of presumed necessity to act for the rescue of a third party from immediate, otherwise unavoidable danger, (so-called 'Putativnotstand')."

In other words, it is claimed that the defendants in committing the acts charged to them, acted in self defense for the benefit of a third party, the third party being Germany. In developing this theme of defense for Germany, Dr. Aschenauer insisted that this Tribunal apply his interpretation of Soviet Law. One can not avoid noting the paradox of the defendants' invoking the law of a country whose jurisprudence, ideologies, government and social systems were all declared antagonistic to Germany, and which very laws, ideologies, government and social system the defendants, with the rest of the German armed forces, had set out to destroy. However, it is the prerogative of Defense Counsel to advance any argument which he deems appropriate in behalf of his client and the fact that Dr. Aschenauer considers Soviet Law more modern than German Law cannot fail to be interesting:

"It has thus achieved the aim which the German reform legislation has been striving at for a long time. Acts of necessity are unrestrictedly admissible if they are necessary for the protection of higher interests in so far as the danger could not be averted by any other means."

Under this theory of law any belligerent who is hard-pressed would be allowed unilaterally to abrogate the laws and customs of

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war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions, the rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect. As untenable as is such a proposition, Dr. Aschenauer goes even further:

"If the existence of the State or of the nation is directly threatened, then any citizen -- and not only those appointed for this purpose by the State -- may act for their own protection."

Under this state of law a citizen of Abyssinia could proceed to Norway and there kill a Norwegian on the basis that he, the Abyssinian, was motivated only by the desire to protect his country from an assumed aggression by the Norwegian.

And that is not all:

"An error concerning the prerequisites of self defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes, according to the reason for, the avoidability and also the degree of gravity of the individual error, a legal excuse or -- at the very least -- a mitigating circumstance."

Thus, if the Abyssinian mentioned above, invaded Norway out of assumed necessity to protect his nation's interest, but it developed later that he killed the wrong person, he would be absolved because he had simply made a mistake. The fact that this astounding proposition is advanced in all seriousness demonstrates how desperate is the need for a further revaluation of the sacredness of life and for emphasizing the difference between patriotism and murder.

Dr. Aschenauer does not claim that the actual circumstances supported Staatsnothilfe (defense of endangered State), but he submits that the state of affairs does not render the deeds of the defendants any less legal provided the defendants assumed that conditions existed for the application of the above-mentioned legal concepts. In support of this argument he points out what he regards the objective conditions and the subjective conditions of the German-Russian war:

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"The East European Jewish problem as part of the problem of Bolshevism; origin and import of the defendants' obsession that a solution of the problem 'Bolshevism versus Europe' could only be brought about by a 'solution' of the Jewish problem and in their particular sphere only by unreserved execution of the Fuehrer-Order."

Thus, even an obsession becomes a valid defense, according to this theory.

Dr. Aschenauer's legal position on assumed self defense has been discussed not because it corresponds with any accepted tenets of international law but only for the purpose of demonstrating that under law the acts of his client and others falling in that category cannot by the widest stretch of the imagination be justified as an act of self defense in behalf of Germany.

Even combatants may only be killed or otherwise harmed in accordance with well-established rules. And there is nothing in the most elementary rules of warfare to permit the killing of enemy civilians simply because they are deemed "dangerous." But in killing, e.g., Jews, the defendants did not succor Germany from any real danger, or assumed danger. Although they declared that the Jews were bearers of Bolshevism, it was not explained how they carried that flag. Nor did any one attempt to show how, assuming the Jews to be disposed towards Bolshevism, this per se translated itself into an attack on Germany. The mere adherence to the political doctrine of Bolshevism did not of itself constitute an aggression or potential aggression against Germany.

It was claimed that the killing of the Jews was predicated on the circumstances of the German-Russian war, but in point of fact Jews were oppressed in Germany and German-occupied territory long prior to that war. The treatment of Jews by Germany and those representing the Third Reich did not depend on the German-Russian war at all. The circumstances that Jews were living in Russia when the German forces invaded Russia was simply a coincidence which did not call for their annihilation. If merely being

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an inhabitant of Russia made that inhabitant a threat to Germany then the Einsatzgruppen would have had to kill every Russian, regardless of race.

If, however, it is argued by the Defense that the German forces considered as mortal enemies and subject to execution only those Russians who were members of the Communist Party, then even according to this theory those Jews who were not members of the Communist Party should have been spared, as were those Russians who were not members of the Communist Party. The record shows, however, that when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew.

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Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 67 - 70 (original mimeographed copy)

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Ken Lewis
March 28, 1998
Rev. 110