. ©MAZAL LIBRARY

NMT04-T0329


. NUERNBERG MILITARY TRIBUNAL
Volume IV · Page 329
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3. GENERAL DEFENSES AND
SPECIAL ISSUES 
 
a. Superior Orders 
 
EXTRACT FROM THE CLOSING STATEMENT FOR
DEFENDANT NAUMANN¹ 
 
* * * * * * * * * * 
 
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
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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

 
 
 
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