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IV. OPENING STATEMENTS FOR
THE DEFENSE |
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A. Opening Statement for
the Defendant Ohlendorf* |
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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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