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3. GENERAL
DEFENSES AND SPECIAL ISSUES |
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a. Superior
Orders |
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EXTRACT FROM THE CLOSING
STATEMENT FOR DEFENDANT NAUMANN¹ |
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I have set forth that Naumann did not
participate in the carrying through of the Fuehrer Order and that he himself
did not give orders for executions.
Even if such a participation could,
however, be considered as proved, a punishment because of this would be
impossible since Naumann's behavior would be due to an order issued by Hitler.
That this order did exist, and that it existed during the whole period in which
Naumann was chief of the Einsatzgruppe B, cannot be doubted according to the
results of the evidence presented. As regards this, I particularly refer to the
testimony of Ohlendorf (Tr. pp. 523-524). (Tr. pp. 1812-15),
Nosske (pp. 350-05), who gave a detailed description of the way in which
the Fuehrer Order was given to the commanders of the Einsatzgruppen and
Einsatzkommandos in Pretzsch.
For the examination of the question as to
whether, and to what degree, the plea of acting on higher orders precludes
punishment, it is first of all of decisive importance according to which law
this objection is to be judged.
During the proceedings against
Flick² and others, Military Tribunal IV declared that it was not a
tribunal of the U.S.A. and, therefore, did not have to apply American
principles, but that it was an international tribunal and that, therefore, the
facts were to be judged according to international law. (Page 3 of the
judgment of 22 December 1947.) I must suppose that this principle applies
generally to the military tribunals here and that, therefore, in this trial the
plea of acting on superior orders is to be judged according to the
international law in force at the time of the action.
As I shall set
forth, the plea of acting on superior orders was thus far admissible in
international law. This result cannot be altered either by the London Charter
or the Control Council Law No. 10. The Charter and Control Council Law No. 10,
therefore, can only be applied inasmuch as they coincide with the hitherto
recognized rules of international law. No new international law could, however,
be created by the Charter and the Control Council |
__________ ¹ Complete closing
statement is recorded in mimeographed transcript, February 1948, pp. 5812-5862.
² United States vs. Friedrich Flick, et. al. See Vol. VI
329 |