. NMT04-T0463
Volume IV · Page 463
| client and the fact that Dr. Aschenauer considers Soviet law more modern than German law cannot fail to be interesting. |
"It has thus achieved the aim which the German reform legislation has been striving at for a long time. Acts of necessity are unrestrictedly admissible if they are necessary for the protection of higher interests insofar as the danger could not be averted by any other means." |
| Under this theory of law any belligerent who is hard-pressed would be allowed unilaterally to abrogate the laws and customs of war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions, the rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect. As untenable as is such a proposition, Dr. Aschenauer goes even further — |
"If the existence of the state or of the nation is directly threatened, then any citizen -- and not only those appointed for this purpose by the state --may act for their protection." |
| Under this state of law a citizen of
Abyssinia could proceed to Norway and there kill a Norwegian on the basis that
he, the Abyssinian, was motivated only by the desire to protect his country
from an assumed aggression by the Norwegian. And that is not all — |
"An error concerning the prerequisites of self-defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes, according to the reason for, the avoidability and also the degree of gravity of the individual error, a legal excuse or — at the very least — a mitigating circumstance." |
| Thus, if the Abyssinian mentioned above,
invaded Norway out of assumed necessity to protect his nation's interest, but
it developed later that he killed the wrong person, he would be absolved
because he had simply made a mistake. The fact that this astounding proposition
is advanced in all seriousness demonstrates how desperate is the need for a
further revaluation of the sacredness of life and for emphasizing the
difference between patriotism and murder. Dr. Aschenauer does not claim that the actual circumstances supported Staatsnothilfe (defense of endangered state), but he submits that this state of affairs does not render the deeds of the defendants any less legal provided the defendants assumed that conditions existed for the application of the above-mentioned legal concepts. In support of this argument he points out what he regards the objective conditions and the subjective conditions of the German-Russian war — |
"The east European Jewish problem as part of the problem |
872486 — 50 — 32
