. ©MAZAL LIBRARY

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. NUERNBERG MILITARY TRIBUNAL
Volume IV · Page 54
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IV. OPENING STATEMENTS FOR
THE DEFENSE
 
A. Opening Statement for the Defendant Ohlendorf* 
 
DR. ASCHENAUER: Mr. President! High Tribunal!

After submission of the documents on the part of the prosecution in the Case of the United States versus Ohlendorf et al, it will be the task of the defense to make their comments concerning the documents themselves. The defense will be able to point out errors, to make clear to the Tribunal points which are contradictions in themselves, thus destroying in some cases the value the documents possess as evidence, as well as reducing the value of the entire evidence brought forth by the prosecution. However, all this does not alter the fact that executions took place. It is therefore the duty of the defense to discuss how this gruesome drama in the East came to pass.

The men accused here before this Tribunal admit in the majority that they committed the acts with which they are charged —

a. In presumed self-defense on behalf of a third party (so-called act for the presumed protection of third parties — Putativnothilfe is the established technical term of the German legal language).

b. Under conditions of presumed emergency to act for the rescue of a third party from immediate, otherwise unavoidable danger (so-called "Putativnotstand" according to the German manner of speaking).

This defense is legally of importance as there exist no national legal code and no national penal system in which the exonerating reasons advanced by the defendants do not carry some weight. How these reasons are designated in the terminology of the penal system of various nations is irrelevant; irrelevant is also, for the time being, to what extent these reasons constitute exemption from punishment or extenuating circumstances, whether they can be regarded as eliminating the prerequisite of unlawfulness, as eliminating the prerequisite of guilt, or as extenuating circumstances; essential at the moment is only the very general assertion that these reasons may influence "whether" and "how" to punish and must therefore be examined.

An examination of the relevance of these reasons, however, is only possible when the legal principles have been clearly established according to which the conditions and consequences of the reasons for exoneration from guilt or instigation of punishment are to be judged. This point must be cleared up first.
__________
* Tr. pp. 257-297, 6 Oct. 1947.
 
 
 
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