that he sent Schubert as a representative to inspect executions. The inspection of an execution is admitted by the Defendant Schubert's own affidavit of 24 February, 1947, which has been often cited before. For the record it is in Document Book I, Page 108 of the English, Page 141 of the German, Document NO-3055, Prosecution's Exhibit 28, in which he states in December 1941 he witnessed an execution near Simferopol. I should like to call the Tribunal's attendion to Schubert's assertion in Paragraph 7 of his affidavit of 4 February 1947, which is in Document Book I, Page 17 in the English document book, Page 19 of the German, and is Document NO-2716, already offered as Prosecution's Exhibit 4, in which he states that the precise totals of executions were not known to him. However, I am speaking of the contents of the reports concerning activities of the group that were regularly sent from his headquarters to Berlin. He states that these reports contained exact details and desreiptions of the places which the actions had taken place, the courseof the operations, losses, the number of places destroyed and persons killed, arrest of agents,report on interrogations and reports on the civilian sector. criminal as charged in Count 3 of the indictment is shown by Paragraph 3 of the Defendant's affidavit of 4 February 1947, above cited as being in Document Book I, Page 17 of the English, Page 19 of the German, and which is Document No-2716 already offered as Prosecution's Exhibit 4. Statements of this Defendant concerning his membership in these criminal organizations are confirmed in Document Book III-D, Page 99 of the English, Page 146 of the German, and is Document NO-3244, now offered as Prosecution's Exhibit 172. This document shows certain excerpts from the SS service record of Heinz Hermann Schubert, a defendant in this case. It shows his membership in the SS and in the SD, his party and SS serial numbers, and other pertinent facts about his life history.
Document Book III-D on the personal responsibility of the defendants in Einsatzgruppe D.
MR. FERENCZ: May it please your Honors, I would like to thank the Tribunal for their patience in remaining longer than the usual session, and I would like to point out that we have only one more item in the presentation of our case in chief. This is a documentary film which is now ready to be shown in Courtroom I, and which lasts about thirty minutes. In order that the defense counsel may be given full opportunity to confer with their clients and to meet their objection that an additional running of the court at this time would prevent that, I would like to join in their request that the court be in recess for a period of several days after the presentation of the Prosecution's case in order to enable them to have sufficient time to prepare their defense, and I would like to request the court to remain for another thirty minutes so that we may conclude our case.
THE PRESIDENT: Yes, do you intend to show that exhibit in this courtroom or Courtroom No. I
MR. FERENCZ: We expect to show it in Courtroom No. I, your Honor, and we would first like to introduce just the certificate which precedes the showing of this exhibit.
THE PRESIDENT: Yes, just before you do that I would like to ask, have you presented all the documents in all the document books?
MR. FERENCZ: We have, your Honor.
THE PRESIDENT: Very well.
DR. GAWLIK: (For Defendants Naumann and Seibert, your Honor, I object to the showing of this film, and I would like to ask the Prosecution to tell us what the probative value of this film would be? This film has been shown, and in my opinion this film has no probative value whatever.
THE PRESIDENT: You say it has been shown?
DR. GAWLIK: The film has been shown to the defense counsels last week in order to give them opportunity to raise objections.
MR. FERENCZ: Your Honor, we invited the defense counsel to see a showing of the film before we cut some of the film, inasmuch as part of it had no relation to this case. We are introducing this film for the purpose of showing some of the mass graves which were found by the Russian soldiers when they returned to territories which had been occupied by the Einsatzgruppen. The films were taken by Russian troops of places where the Merman troops had been, and they opened the mass graves in the cities in which we charge these defendants with having committed crimes.
THE PRESIDENT: It would appear to the Tribunal from what you have said that this exhibit could well form part of the res gestae of the case, and whatever comments you wish to make on it later, of course you are free to do so. whether you may not have the opportunity of seeing your clients after the showing of this picture, even if it is one-half hour later, and I have been assured that this may be done. I would like to know in which room you usually interview your clients so that the necessary arrangements can be made.
DR. GAWLIK: Your Honor, in Room 57 and in the gymnasium, in Room 57 and in the gymnasium.
THE PRESIDENT: Very well.
DR. GAWLIK: Your Honor, I have another suggestion about the film. I should like to suggest that the film should be shown without any commentary, as a mute film, because any oral statements can only be introduced by witnesses, or by the way of witnesses, or there should be a witness who explains the film so that we have the opportunity to crossexamine this witness. We do not know who this person is who explains the film or who makes the statements, and we have no opportunity to rectify these statements. Then this film should be shown as is done by a silent film, without any commentary.
MR. FERENCZ: If your Honors please, this film was introduced as an exhibit before the International Military Tribunal. The Tribunal there accepted it with the English commentary. I believe the Tribunal is in a position to judge what is evidence and what is not evidence, and we ask therefore that the film be shown as it was accepted by the International Military Tribunal.
THE PRESIDENT: I can assure Dr. Gawlik that the Tribunal will not be emotionally disturbed by any commentary made by any narrator. We will merely view what is shown to us, and whatever is to be said about the film can be said by defense counsel and by Prosecution. It would require too much of a mechanical alteration to attempt to remove the audible accompaniment to the film at this time, and I think it will be much simpler if we will now recess and reconvene immediately in Courtroom No. I. Is there anything further to be said?
MR. FERENCZ: Yes, your Honor. I would just like to offer the exhibit which is the certificate preceding this film. I offer now as Prosecution's Exhibit No. 173 Document No. USSR-81. This is the certificate of the Russian cinema operators and has already been given to the defense counsel in German. The English copy will be made available to the Tribunal very shortly.
DR. FICHT: Dr. Ficht for the Defendant Biberstein. original of these documents are only available until tomorrow exclusively, because after that they will be transported to Berlin. It appears to me that on the basis of today's proceedings it seems necessary that stipulations about various points should be made with our clients, and I should like you to make it possible for us to keep the documents, the original documents, a little longer, at least a day longer.
THE PRESIDENT: Do you know whether Colonel Helm would object to remaining over one more day, Mr. Ferencz?
MR. FERENCZ: Unfortunately, your Honor, Colonel Helm is not here. I know that he has important business in Berlin. However, I believe I can persuade him to leave the documents here one day longer if necessary.
THE PRESIDENT: The Tribunal will recess only momentarily and reconvene in Courtroom No. I. The defendants will be escorted there, of course, under guard.
(A recess was taken in order to reconvene in Courtroom No. I.)
THE MARSHAL: THE Tribunal is agian in session.
MR. FERENCZ: If Your Honors please, the translating system is not functioning and we will therefore translate directly from the floor to the defense counsel. The sound track is in English and the defense counsel have a German translation of the sound track in their possession. Therefore, it will not be necessary to translate as the film is being shown. We have a copy of the the sound track for the Tribunal and it will be in English.
THE PRESIDENT: Very Well.
MR. FERENCZ: The prosecution is now ready to show the next document.
(prosecution Exhibit No. 173 was then shown.)
MR. FERENCZ: If Your honors please, that is the conclusion of the prosecution's Case-in-Chief.
THE PRESIDENT: The Tribunal will now recess and reconvene next Monday morning at 9:30 o'clock in Courtroom No. 11, Room 581. The Tribunal will now rise.
(The Tribunal adjourned until 6 October 1947, at 0930 hours.)
THE MARSHAL: The Honorable, the Judges of Military Tribunal No. II-A.
Military Tribunal No. II-A is now in session. God save the United States of America and this Honorable Tribunal.
THE PRESIDENT: For the purpose of the record, it will be noted that Otto Rasch and Eduard Strauch, because of illness, are not present in Court and will be excused from today's session. and reconvened in Courtroom No. 1, Dr. Gawlik, I think, made an objection to the showing of a motion picture exhibit, which was about to be projected in Courtroom No. 1. We overruled the objection, because by the very nature of things, it was impossible for the Tribunal to know just what the exhibit consisted of. We did witness the motion picture and we ere now convinced that the objection was in order and should have been sustained. It was not apparent to the Tribunal how this motion picture exhibit in any way implicated individually any of the defendants. Therefore, the objection is now sustained and the motion picture will have no effect upon the disposition of this case.
I might add, personally. that I could not in any way use that exhibit in the disposition of this case, because I closed my eyes after the first five minutes.
Dr. Aschenauer, you may now proceed with the opening statement.
Mr. President High Tribunal! the Case of the United States versus Ohlendorf, at al, it will be the task of the Defense to make their comments concerning the documents themselves. The Defense will be able to point out errors, to make clear to the Tribunal points which are contradictions in themselves, thus destroying in some cases the value the documents possess as evidence, as well as reducing the value of the entire evidence brought forth by the Prosecution.
However, all this does not alter the fact that executions took place. It is therefore the duty of the Defense to discuss how this gruesome drama in the East come to pass. they committed I. The acts with which they are charged
a) in presumed self-defense on behalf of a third party(so-called act for the presumed protection of third parties (Putativnothilfe) is the established technical term of the German legal language).
b) under conditions of presumed emergency to act for the rescue of a third party from immediate, otherwise unavoidable danger (socalled "Putativnotstand" according to German manner of speaking). This defense is legally of importance as there exist no national legal code and no national penal system in which the exonerating reasons advanced by the defendants do not carry some weight. How these reasons are designated in the terminology of the individual national penal systems is irrelevant; irrelevant is also, for the time being, to what extent these reasons constitute exemption from punishment or extenuating circumstances, whether they can be regarded as eliminating the prerequisite of unlawfulness, as eliminating the prerequisite of guilt, or as extenuating circumstances; essential at the moment is only the very general assertion that these reasons may influence "whether" and "how" to punish and must therefore be examined. possible when the legal principles have been clearly established according to which the conditions and consequences of the reasons for exoneration from guilt or instigation of punishment are to be judged. This point must be cleared up first. 1) The so-called General Regulations of Law No. 10 laying down the constituent elements of a crims. On the contrary, every national penal code contains a great number of regulations which determine the general conditions which make an act a punishable offense, conditions which are fundamentally common to all crimes, be this in the form of a definite decree, be it in the form of a common law brought into a system by decisions of trial courts or by publications of members of the legal profession.
Into this group fall among others the regulations pertaining to causality, intent and negligence, attempt and preparatory acts, perpetration itself, and mere participation, soundness of mind and age limit, periods of limitation, further, which is of importance for the following, the regulations concerning self-defense, including presumed self-defense (Putativnotwehr) and the regulations concerning acts committed for the protection of other persons in danger, including the cases where this danger is only presumed.
None of this applies to Law No. 10. Apart from instituting by implication the principle "nulla poena sine lege poenali praevia" to the negative, it merely contains regulations stipulating the nonlimitation of certain acts, the legal irrelevance of the fact that the acts were committed by responsible officials and the instigating fact that the acts were committed upon orders. Other regulations which normally form part of the "General Regulations" of every penal code are not contained in the law.
There can be no doubt (and on the occasion of actual cases the Military Tribunals themselves made statements to this effect) that the silence of Law No. 10 is not to be interpreted in such a way as if the reasons, circumstances and conditions which make an act a punishable offense or exclude punishment should have no bearing. There is no question of that. Circumstances such as the regulations concerning soundness of mind, age limit as far as guilt is concerned, selfdefense and acts committed under the pressure of emergency, etc. regardless of whether they are ruled by written law or by common law, are simply indispensable.
The question is merely which sources are to be drawn open for the problems not settled by Law No. 10.
If Law No. 10 were a so-called special national law, it would be very simile to answer this question. One would only have to fall back on the general regulations of the Penal code of that country which enacted this law, just as the so-called penal by-laws of the German law forge "General Regulations" of their own and refer to the corresponding general regulations of the German Penal Code. However, Law No. 10 is barred from the use of this possibility. The reason is that this law, owing to its origin, is an international agreement, made by the four signatory powers for the detailed implementation of the Moscow Declaration of 30 October 1943 and the London Declaration of 8 August 1945. However, this agreement was made by four sovereign powers of equal rights, each of which had its own penal system. Thus it is impossible simply to use the pertinent regulations of the Code Penal, the Soviet penal Code 1926, the English or American Penal Law as "General Regulations" of Law No. 10. 2) Which legal system is to form the basis of the "General Regulations" of Law No. 10?
Here the following fundamental possibilities exist:
a) Applicable is the law of this state which administers justice in the actual case. In the case at hand the Tribunal would therefore have to draw upon the general regulations of the penal law of the United States of America to fill the gaps of Law No. 10.
This solution would have one undeniable advantage: namely, an exact knowledge of the applicable laws on the part of the Tribunal which will make the decision. On the other hand, these advantages are outweighed by considerable disadvantages. There is, first of all, the question whether Federal Penal Law or the penal law of one single state would be applicable. As the latterpossibility is excluded, the gaps of Law No. 10 would have to be filled by the Federal Penal Law of the USA. To judge acts under the pressure of emergency end in self-defense in accordance with the Federal Penal Law of the USA, however, calls forth the same doubts as those which speak against the supplementary use of the Angle-American legal system when judging European continental legal conditions.
The doctrine of these legal systems on the rules governing acts of selfdefense and acts committed in a state of emergency, rules developed by Case Law, would be so alien to European legal thought, that it is bound to produce misleading results if applied to the conduct of the Defendant. According to American law, the scope of the rules governing acts of self-defense is extremely narrow, if compared with the European concept; the principles of the rules governing acts committed in assumed self defense are not even elucidated. Similar to English law, selfdefense forms part of the constituent elements of a crime and, therefore, does not carry the same comprehensive and fundamental importance as it has in European law. Therefore, the closing of gaps left in Law No. 10 with American statutary or common law, would no doubt violate the predominant principle that an act can only be completely judged if presented in its social and legal context; it would not be in conformity with the principle of material justice, as postulated in Law No. 10, if principles alien to the German and European concept of law were applied, in considering legally relevant varieties of conduct, such as acting in emergency or in presumed emergency, acting in self-defense or in presumed self-defense. supplement application of the legal code of the nation by which the Court is formed in the case. The evaluation of the Defendant's actions would differ - and this would have effects contrary to just punishment if each Court were to fall back on its own national law. For in that case it would be unavoidable that the interpretation of the concept of mental sanity, by e.g. a French court should differ from the one, say, of an English Court.
The result would he that, given identical cases the difference in age limits would also have to be considered - one Defendant would have to be acquitted, while the other would have to be sentenced, because he happened to be handed over to a Court of a different Allied nation. The supplementary application of the LEX FORI does not therefore lead to a satisfactory solution.
b) The national law of the defendant should be applied. In order to close the gaps left in Law No. 10 in the field of general regulations, the general part of the German Criminal Code would therefore have to be applied in case this doctrine is followed. the Court is A PRIORI not familiar with that law. This, however, is outweighed by considerable advantages. The general part of the German Penal Code is (as are the Austrian, Swiss, and Russian Laws) a characteristic representative of the European legal system with its tendency to lay down firm, and at the same time general rules, especially in respect to acts committed in a state of emergency and in self-defense. Furthermore, that law could in fact, and not only in hypothesis, be considered the guiding principle for the conduct of the Defendant. The Defendants are also psychologically forced to admit the validity of these law statutes against themselves to their full extent; they do not have the excuse that they are being judged according to "foreign penal law". Finally also International Law speaks in favor of applying German Criminal Law in a supplementary fashion; for, as the Defendants committed their acts in occupied enemy territory, these acts have to be considered, according to a theory popular on the Continent of Europe, as committed within the borders of Germany within the meaning of the Criminal Code.
c) The law of the place of the crime should be applied. As the offense of the Defendants is "geographically defined" within the meaning of the Moscow Declaration of 30 October 1943, that law can easily be ascertained; in the case under review, it is the Penal Code of the Soviet Union (Penal Codes of the Russian Soviet Federal Socialist Republic of 1926, of the Ukrainian Republic of 1927 and any Special All-Union Laws). The following considerations speak in favor of the supplementary application of that law.
Firstly, according to the Moscow Declaration of 30 Oct. 1943, (which according to Article I forms an integral part of Law No. 10) the law of the place of the crime (Law LOCI) rules the adjudication of crimes which can be geographically defined; the perpetrators "will be sent back to the countries in which their abominable deeds were done in order that they may be punished according to the laws of these liberated countries". Furthermore, the applicability of the LEX LOCI is explicitly stressed in the indictment itself; this must, naturally, be true not only for the arguments of the Prosecution, but also for any exonerating or justifying circumstances. Finally the application of the LAW LOCI also conforms to the idea of justice.
d) Finally: the law of the victim State should be applied - in this case again, the Penal Code of the Soviet Union. The facts which favor the principle stated in c) also apply here. That theory is further supported from the point of view of legal systems, by the principle of punishing acts committed in a certain country according to the laws of that country and for the protection of that country, a principle recognized in International Penal Law; it is supported, from the point of view of territorial applicability, by the fact that above all other solutions, it stills the justifiable desire for retribution on the part of the primarily injured state. The following will show that in the first place the Soviet Penal Law and, failing that, the German Penal Law, should be used to supplement "general regulations" in order to close the gaps in Law No. 10 and that this solution is preferable by far to any other possibility.
That choice brings with it another very important advantage. For the problems under discussion in the present case, namely evaluation of acts of self-defense end pets of emergency, the two legal systems show striking similarities, as both are exponents of the characteristic European concept of Penal Law, with its tendency to systematic generalization and adversity towards Case Law.
This can be easily explained on historical grounds. For the Penal Code of the Russian Soviet Federal Socialist Republic of 1926 is largely based on the old Russian Penal Code of 1903; the latter's origin, however, was decisively influenced by the German doctrine prevalent in about 1900. When we compare the German and Soviet rules governing acts of self-defense and acts committed in an emergency, we can arrive at that "cross-section", that "average rule", a result unobtainable by comparing the Continental European and the Anglo-Saxon Penal Laws, owing to the difference between these two legal systems. A Court called on to decide a specified case is only then able fully to evaluate the arguments of a defendant, if their evaluation is based on the so-called European "cross-section" of the rules governing acts of self-defense and acts committed in en emergency. The rules have to be discussed in the following, and the arguments brought forward for the defendant have to be judged according to these rules. and in presumed self-defense. according to European legal conception. The prerequisites of these two legal concepts first have to be examined separately, according to German and according to Soviet Law; subsequently it has to be ascertained which prerequisites are common to both legal systems; the result will form the above-mentioned "cross-section", on which the actual evaluation of the defendant's actions has to be based. I. Self-Defense 1) According to German Law.
a) Self-defense is considered (Article 53 of the Penal Code) a so called justification; where self-defense is established there can be no question of an act being unlawful:
the act is not only excused but even approved by the law. The prerequisite for self-defense is an unlawful attack, i.e., an attack which the attacked person does not have to tolerate. The attack need not yet have started. Self-defense is also admissible in the face of an imminently threatening attack. Acts in defense of all protected interests come under self-defense which is not limited to acts in protection of life and limb. Therefore, also the state as such, the existence of a nation, the endangered vital interests of a nation, can be defended in self-defense. The protected interests are thus much more numerous then in Anglo-Saxon Law.
b) Not only the person attacked, but any third person, is allowed to act in self-defense. This is important, particularly with respect to the so-called self-defense on behalf of the State. For selfdefense in favor of the State always constitutes an act for the protection of a third party, can therefore only be carried out by a third person. No comparison in the value of the protected interests is being drawn in the case of self-defense, neither does it exist, therefore, in the case of defense of the State. The only measure for the defensive action always is the intensity of the attack.
c) Presumed self-defense and acts for the presumed protection of a third party. Although these concepts are not formulated in the law, they are generally recognized in theory and jurisdiction. They exist where the perpetrator erroneously presumed an "unlawful attack". If the error was unavoidable, the presumed state of self-defense serves as justification; if, however, the error could have been avoided. the legal importance of such self-defense is contested; according to one opinion, the defendant cannot be sentenced for having acted with intent; while according to another less widespread opinion it constituted a factor mitigating the guilt, while accountability for intent remains.
According to both opinions, it is, however, impossible to hold the Defend and responsible to the full extent for this criminal guilt, if, owing to a factual error, he believed his act to be justified. 2. According to Soviet Law.
a) According to Soviet Law (Art. 13, par. 1 of the Penal code of the Russian Society Federal Socialist Republic and the other Republics of the Union of the year 1926) the concept of self-defense conforms essentially to the German concept. Self-defense can apply to the State too, and particularly to the Soviet organization as such. In contrast to German law, the Soviet law even states VERBIS EXPRESSIS that selfdefense may be also exercised in favor of the State (compare for details Maurach, Systematic Treatise on the RUSSIAN PENAL LAW of 1928, p. 101). As in the German law, there is no provision for fixed proportions between the clashing interests. It is not clarified in professional publications whether an act committed in aid of a third person constitutes justification or only an excuse.
b) Presumed self-defense and acts for the presumed protection of a third person. As in the German law, this is not laid down by law, but is recognized in jurisdiction and literature. It is treated in the same manner as a factual error. It excludes intent, the guilt is at least considered as mitigated; it is immaterial whether or not the error was avoidable. II. State of Emergency 1) According to German Law The regulations concerning the state of emergency (Notstand) found in the existing laws are insufficient, not codified and given for individual cases and situations.
The fundamental decisionof the Reich Supreme Court clarified the position. According to this the following applies:
a) A distinction is made between a state of emergency as justifica tion for an act end a state of emergency merely precluding guilt.
A feet com on to both is that an interest protected by law must be in imminent danger, which danger can only be averted by the violation of another interest protected by the law, having no connection with the first one. If the threatened interest is found to be of greater value, then the state of emergency constitutes grounds for justification; if the interests cannot be weighed and if there is a threat of danger of life or limb of the perpetrator or a relative then the state of emergency constitutes a reason precluding guilt.
b) National Emergency is in principle recognized within the same limits as assistance to the State in case of emergency ( Staatsnothilfe). According to the decision of the Reich SupremeCourt of 3 April 1922 File II, 791122, a situation of acute danger is constituted particularly by underground activities of resisting elements of the population of an area and the increasing insecurity of that area resulting therefrom". Furthermore, the Reich Supreme court has in No. 60, 318. recognized the so-called permanent state of emergency and has stated that the permanent danger which a particular person presents to the community could, in certain circumstances, justify his elimination by killing as an act of emergency. The question of whether national emergency allows the killing of a man was, on the other hand, left open by the Reich Supreme Court. The question has been widely discussed, especially in the period following the first war, but was never definitely decided.
c. Presumed state of emergency. The law gives no definite ruling on this, but it is recognized according to common law in doctrine and jurisprudence. In principle it is treated in the same Way as presumed self-defense.
2. According to Soviet law: More modern than German law, Soviet Penal Law gives, in Section 13, paragraph 2 of the Criminal Code, a ruling on the state of emergency. It has thus achieved the aim for which the German reform legislation has been striving for a long time. Acts of emergency 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. Whether this constitutes a justification or merely a legal excuse is not clear. There is no legal ruling on a presumed state of emergency but it is treated as an error and thus comes in the same category as presumed self-defense.
3. Results of comparison of both legal systems. If the elements common to both legal systems are examined, a wide similarity will be found in the conceptions of these legal terms:
a. Self-defense. All protected interests may be the subject of self-defense, particularly the survival of the state and the vital interests of the nation represented by the state. If the existence of the state or of the nation is directly threatened, any citizen -- and not only those appointed for this purpose by the state -- may act for their protection. The extent of the self-defense or of the act for the protection of the third party (Nothilfe) varies according to the severity of the attack and does not exclude killing. 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 avoidability and also the degree of gravity of the individual error, a legal excuse or, at the very least, a mitigating circumstance.
b. State of emergency. In accordance to both legal systems, a state of emergency is always of a subsidiary character - thus it is a so-called last resort.
All legal interests can be in a state of emergency, especially also the state and its institutions as well as the welfare of the nation. A state of emergency is recognized where the threatened legal interest is of considerably greater value than the interest attacked by the perpetrator. A presumed state of emergency is, on principle, treated as a grave error - that is, it is treated in the same manner as presumed self-defense. of a legal clause. On the basis of the examination of the European "cross-section" of the legal position assumed by the defendant Ohlendorf, it must be established to what extent the actual circumstances under which the defendant acted correspond to the prerequisites of a criminal case as described above. Before, however, reference must be made to the method to be applied. the real conditions were given for a case of action in defense of the endangered nation (Staatsnothilfe) or participation in the self-defense of the state (Staatsnotwehr). But they do submit that in view of the special situation in which they found themselves and in which they were called upon to act, they assumed that the conditions were given for the above-mentioned legal concepts. There is no need to examine the questions whether there actually existed a situation calling for an act of self-defense or of emergency. and which discusses the objective conditions for an act of self-defense and in a state of emergency. Such an examination is necessary in order to find out where, precisely, the defendant Ohlendorf committed the error concerning the permissibility of his action; because the greater the extent to which the objective situation corresponded to the defendant's conception, the weightier his defense that by mistake he considered his action justified or necessary.
After this introduction, and on the basis of the defendant's statement, the examination may be arranged according to the following points of view:
1. Objective conditions, i. e., conditions which existed not merely in the defendant's mind but were actual facts: the nature of the war against the Soviet Union.
2. Subjective conditions. i. e., conditions Which were not actual facts, the assumption of which could, however, have brought about the defendant's error about what would constitute the conditions for action in defense of the endangered nation or in a state of national emergency; the East European Jewish problem as part of the problem of Bolshevism; origin and import of the defendant's obsession that a solution of the problem - Bolshevism versus Europe - could only be brought about by a "solution" of the Jewish problem, and, in their particular sphere, only by unreserved execution of the Fuehrer order. tions, - that is, the question of the cause for the above-mentioned obsession, I call upon the expert witness Professor Dr. Reinhart Maurach. does not justify extraordinary actions prohibited by written and common international law from the point of view of self-defense, and a state of emergeny. If this were the case, international law would be a mere illusion, for at least one of the parties waging wax would be able to claim to have acted in self-defense - whereas both parties would be at liberty to plead the existence of a state of emergency. or state of emergency. But a preliminary condition is that there is really war in the strict sense of international law, an armed clash between two states; but if the armed clash has from the outset an aspect considerably exceeding the measure of war and its limits, if, in other words, the war aims and war methods to be definitely expected from one of the opponents are so "total" that, in relation to them, the tradi tional conceptions and limits of international law cannot be applied, it will not be possible to refuse resort to self-defense and to a state of emergency - even within the war - to the opponent of such a state.