. NMT04-T0341
Volume IV · Page 341
| be classified as the types of offenses as
outlined in the basically applicable Control Council Law No. 10. In that
respect the individual counts of the indictment are assumed as proved, without
any prejudice to the result of the evidence to be taken. Nor is the expert
opinion aimed at investigating the unlawfulness of the conduct the
defendants are charged with (use of possible objective arguments in defense).
What remains to examine is the question of guilt. This question, on the other hand, had to be propounded as a question of principle, because the defendants claim for themselves an exception and are pleading to have acted under necessity, which cannot but influence the degree of responsibility. This justifies the structure of this expert opinion, the details of which can be seen from the table of contents. |
| I. SELF-DEFENSE |
1. According to German law |
| a. In
general. Self-defense (Art. 53 of the Criminal Code) is admitted as a legal
defense plea; if it is given, unlawfulness of the act is excluded, the deed not
only is excused by the law, but even approved of. The prerequisite for
self-defense is an unlawful attack, that is, such an attack as the attacked
need not tolerate. The attack need not have started; self-defense is also
admissible against an immediately imminent attack. Self-defense is applicable on behalf of all values; a limitation to body or life in particular is not provided. Entitled to self-defense, therefore, is also the state as such, the existence of the people, the menaced vital interest of the nation (Decision Reich Court in Criminal Matters, vol. 63, p. 220). The circle of values entitled to self-defense, therefore, is drawn much wider than according to Anglo-Saxon law. b. Aid in self-defense, in particular aid in self-defense of the state. The person attacked is not the only one who can practice self-defense, but also any third party. This is particularly the case in so-called self-defense of the state. For self-defense on behalf of the state is always assistance in case of distress, and can, consequently, always be given by a third party only. The relation between offended and defended values is of no account, either in the case of self-defense or in the case of assistance to the state in distress. The intensity of the attack alone is decisive for the defensive action. c. Putative self-defense and putative assistance in distress. This legal concept is not developed by law, but generally recognized in science and jurisdiction. It is given if the perpetrator was errone- [...ously] |
