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Volume IV · Page 462
| not between individuals as such. In war there
is no legal entity such as a "defeated individual" just as there is no judicial
concept of a "victorious individual". The defendants are in court not as
members of a defeated nation but because they are charged with crime. They are
being tried because they are accused of having offended against society itself,
and society, as represented by international law, has summoned them for
explanation. The doctrine that no member of a wronged community may try an
accused would for all practical purposes spell the end of justice in every
country. It is the essence of criminal justice that the offended community
inquires into the offense involved. In the fullest appreciation of the responsibilities devolving upon the Tribunal in this particular phase of the case, as in all phases, reference is made to the speech by Mr. Justice Jackson in the International Military Tribunal trial in which he said — |
"We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice." |
| What Mr. Justice Jackson said at the beginning of that trial, this Tribunal says at the termination of the current trial. |
| Self-Defense and Necessity |
| Dr. Aschenauer, speaking for the
defendant Ohlendorf and such others whose cases fall within the general pattern
of the Ohlendorf defense, declared that the majority of the defendants
committed the acts with which they are charged "(a) In presumed self-defense on behalf of a third party. (‘Putativnothilfe’ ) is the technical term in the German legal language.) "(b) Under conditions of presumed necessity to act for the rescue of a third party from immediate, otherwise unavoidable danger (so-called ‘Putativnotstand’)." In other words, it is claimed that the defendants in committing the acts charged to them, acted in self-defense for the benefit of a third party, the third party being Germany. In developing this theme of defense for Germany, Dr. Aschenauer insisted that this Tribunal apply his interpretation of Soviet law. One cannot avoid noting the paradox of the defendant's invoking the law of a country whose jurisprudence, ideologies, government and social system were all declared antagonistic to Germany, and which very laws, ideologies, government, and social system the defendants, with the rest of the German Armed Forces, had set out to destroy. However, it is the prerogative of defense counsel to advance any argument which he deems appropriate in behalf of his |
