. NMT04-T0354
Volume IV · Page 354
| [inter...] national law. There threatened
from the Soviet Union a total attack waged in a manner contrary to
international law, not only against the German Reich, but in its implications
[Fortwirken] against the entire European system of states and societies, an
attack which exceeded the frame of normal war danger and justified extensive
security measures on the part of the menaced state. Therefore, this was a case
of an unlawful attack, in the meaning of international law and continental
criminal law which can here be coordinated. We must reject any objective justification of the liquidation order and its execution. For, as seen from the objective point of view, the attack came neither from that side against which the liquidation measures were directed nor did these measures remain within the frame of the preamble of the Hague Convention concerning War on Land which are regarded as compulsory, minimum rules of common law, even in the absence of the validity of this convention. On the other hand it will have to be examined to what extent the defendants can plead putative assistance in distress (on behalf of the Reich and the German nation). The defendants, according to the National Socialist theory as well as due to their own conception and experience, were obsessed with a psychological delusion based on a fallacious idea concerning the identity of the aims of bolshevism and the political role of Jewry in eastern Europe. This conception was apt not only to exclude the possibility of a discussion regarding the moral defensibility of the liquidation order but to bring the defendants to the conviction that the attack against the future existence of the German Reich and people was to be expected mainly from the Jewish population in the occupied Russian territories. If this association of ideas can be considered in favor of the defendants the Tribunal will also have to consider the effect of a factual error on the degree of guilt. b. Putative necessity The position is here essentially the same. In place of the threatening attack there appears here the imminent state of emergency of a legal value the existence of which is endangered (existence of state and nation) which the acting party is called upon to protect. Even here the objective prerequisites for a justification. of the act are missing. For the liquidations carried out by the defendant were (apart from their objectionable nature according to moral law) not the proper actions required for the removal of the danger. But even here one cannot get by the question of putative, necessity. The prerequisites here are the same as in the case of (a). The further prerequisite of putative necessity, namely, the conviction of the perpetrator that he is sacrificing an object of |
