The third defense in this project is the defense of necessity. Here is the discussion of this issue from the jugment in the "Einsatzgruppen Case" (full judgment at viewtopic.php?t=64901 ):
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 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 of bolshevism; origin and import of the defendants' 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 be unreserved execution of the Fuehrer Order."
Thus, even an obsession becomes a valid defense, according to this theory.
Dr. Aschenauer's legal position on assumed self-defense has been discussed not because it corresponds with any accepted tenets of international law but only for the purpose of demonstrating that under any law the acts of his client and others falling in that category cannot by the widest stretch of the imagination be justified as an act of self-defense in behalf of Germany.
Even combatants may only be killed or otherwise harmed in accordance with well-established rules. And there is nothing in the most elementary rules of warfare to permit the killing of enemy civilians simply because they are deemed "dangerous". But in killing, e.g., Jews, the defendants did not succor Germany from any real danger, or assumed danger. Although they declared that the Jews were bearers of bolshevism, it was not explained how they carried that flag. Nor did any one attempt to show how, assuming the Jews to be disposed towards bolshevism, this per se translated itself into an attack on Germany. The mere adherence to the political doctrine of bolshevism did not of itself constitute an aggression or potential aggression against Germany. It was claimed that the killing of the Jews was predicated on the circumstances of the German-Russian War, but in point of fact Jews were oppressed in Germany and German-occupied territory long prior to that war. The treatment of Jews by Germany and those representing the Third Reich did not depend on the German-Russian at all. The circumstance that Jews were living in Russia when the German forces invaded Russia was simply a coincidence which did not call for their annihilation. If merely being an inhabitant of Russia made that inhabitant a threat to Germany then the Einsatzgruppen would have had to kill every Russian, regardless of race.
If, however, it is argued by the defense that the German forces considered as mortal enemies and subject to execution only those Russians who were members of the Communist Party, then even according to this theory those Jews who were not members of the Communist Party should have been spared, as were those Russians who were not members of the Communist Party. The record shows, however, that when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew.
Mass Killings For Ideological Reasons
Dr. Reinhard Maurach, Professor Criminal Law and Eastern European Law, was called by the defendant Ohlendorf to expound the international law underlying the position of the various defendants maintaining Ohlendorf's view. Some sections of his treatise, submitted as Ohlendorf Document 38, supported the prosecution rather than the defense. On three occasions he condemned mass killings for ideological reasons."This is the place to say with special emphasis that the shooting of entire groups of a population is not justified by any 'collective suspicion', of any group, no matter how great."It has already been emphasized that the issuing and execution of mass liquidation orders cannot find any justification in international law, even within the scope of a total war of this kind, and in particular cannot allow of any appeal to the objective premises of self-defense and emergency.
"General extermination measures cannot be justified by any war situations, no matter how exceptional."
However, in the end the expert arrived at an opposite conclusion. First, he stated that a state of war as such does not vindicate extraordinary actions, but then in a superb demonstration of legal acrobatics he declared that if the war aims of one of the opponents are total, then the opponent is vindicated in claiming self-defense and state of necessity, and, therefore, may introduce the mass killings he had previously condemned.
For the purpose of considering this argument we will ignore the fact that Germany waged an undeclared war against Russia, that Germany was the invader and Russia the invaded, and look only to the evidence adduced to support the theme that, after being invaded, Russias actions were such as to call for the executions of which the prosecution complains.
In behalf of the defendants many so-called Russian exhibits were introduced. Among them were documents on the Soviet foreign policy, statements emanating from the Kremlin, articles from the Russian encyclopedia, and speeches made by Stalin. All these exhibits are strictly irrelevant and might well be regarded as a red herring drawn across the trail. But the Tribunal's policy throughout the trial has been to admit everything which might conceivably elucidate the reasoning of the defense. Thus, the excerpt from Stalin's speech of 3 July 1941, quoted in Ohlendorf's document book, will be cited here"In the areas occupied by the enemy, cavalry and infantry partisan detachments must be formed and diversion groups created for fighting the units of the enemy army, for kindling partisan warfare everywhere and every place, for blowing up bridges and highways, for destroying telephone and telegraph connections, for burning down forests, supply camps and trains. Unbearable conditions must be created for the enemy and all of his accomplices in the occupied areas, they must be pursued and destroyed at every step and all their measures must be frustrated. One cannot regard the war against Fascist Germany as an ordinary war. It is not only a war between two armies. It is at the same time the great war of the entire Soviet people against the fascist German Troops."
Scrutiny of this speech fails to reveal anything which orders the execution of German prisoners of war or the shooting of wounded persons, or the mass killing of Germans in German territory occupied by Russia, or anything which would justify the allegedly retaliatory killing of noncombatant Jews.
One of the most amazing phenomena of this case which does not lack in startling features is the manner in which the aggressive war conducted by Germany against Russia has been treated by the defense as if it were the other way around. Thus, one of the counsel in his summation speech said:"However, as was the case in the campaign against Russia, when a large number of the inhabitants of this land, whether young, old, men, women or child, contrary to all acts of humanity and against every provision of international law, cowardly carries on a war from ambush against the occupying army, then certainly one cannot expect that the provisions of international law would be observed to the letter by this army."
No comment is here needed on the statement which characterizes the defense of one's country as "cowardly", and the other equally astounding remark that the invader has the right to ignore international law.
Death of Noncombatants by Bombing
Then it was submitted that the defendants must be exonerated from the charge of killing civilian populations since every Allied nation brought about the death of noncombatants through the instrumentality of bombing. Any person, who, without cause, strikes another may not later complain if the other in repelling the attack uses sufficient force to overcome the original adversary. That is fundamental law between nations as well.
It has already been adjudicated by a competent tribunal that Germany under its Nazi rulers started an aggressive war. The bombing of Berlin, Dresden, Hamburg, Cologne, and other German cities followed the bombing of London, Coventry, Rotterdam, Warsaw, and other Allied cities; the bombing of German cities succeeded in point of time, the acts discussed here. But even if it were assumed for the purpose of illustration that the Allies bombed German cities without Germans having bombed Allied cities, there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory.
A city is bombed for tactical purposes; communications are to be destroyed, railroads wrecked, ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it inevitably happens that nonmilitary persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women, and children and shooting them.
It was argued in behalf of the defendants that there was no normal distinction between shooting civilians with rifles and killing them by means of atomic bombs. There is no doubt that the invention of the atomic bomb, when used, was not aimed at noncombatants. Like any other aerial bomb employed during the war, it was dropped to overcome military resistance.
Thus, as grave a military action as is-an air bombardment, whether with the usual bombs or by atomic bomb, the one and only purpose of the bombing is to effect the surrender of the bombed nation. The people of that nation, through their representatives, may surrender and, with the surrender, the bombing ceases, the killing is ended. Furthermore, a city is assured of not being bombed by the law-abiding belligerent if it is declared an open city. With the Jews it was entirely different. Even if the nation surrendered they still were killed as individuals.
It has not been shown through this entire trial that the killing of the Jews as Jews in any way subdued or abated the military force of the enemy, it was not demonstrated how mass killings and indiscriminate slaughter helped or was designed to help in shortening or winning the war for Germany. The annihilation of defenseless persons considered as "inferior" in Russia would have had no effect on the military issue of the war. In fact, so mad were those who inaugurated this policy that they could not see that the massacre of the Jews in many instances actually hindered their own efforts. We have seen in the record that occasionally German official tried to save Jews from extinction so that they could be forced to work for the German war effort. This would have been another war crime, but at least it would not have been so immediately disastrous for the victims.
The Einsatzgruppen were out to kill "inferiors" and, first of all, the Jews. But in the documentation of the war crimes trials since the end of the war, no explanation appears as to why, from the viewpoint of the Nazis, the Jew had to die. In fact, most of the defendants in all these proceedings have expressed a great regard for the Jew. They assert they have admired him, befriended him, and to have deplored the atrocities committed against him. It would seem they were ready to help him in every way except to save him from being killed.
The Einsatzgruppen were told at Pretzsch that "the Jews" supported bolshevism, but there is no evidence that every Jew had espoused bolshevism, although, even if this were true, killing him for his political belief would still be murder. As the Einsatzkommandos entered new cities and towns and villages they did not even know where to look for the Jews. They could not even be sure who were Jews. Each Einsatzkommando was equipped with several interpreters, but it became evident throughout the trial that these invading forces did not carry sufficient linguistic talent to cope with the different languages of the States, provinces, and localities through which they moved. There can be no doubt that because of the celerity with which the order was executed countless non-Jews were killed on the supposition that they were Jews. Frequently, the only test applied to determine judaism was that of physiognomy.
One either justifies the Fuehrer Order or one does not. One supports the killing of the Jews or denounces it. If the massacres are admitted to be unsupportable and if the defendants assert that their participation was the result of physical and moral duress, the issue is clear and it becomes only a question of determining how effective and oppressive was the force exerted to compel the reluctant killer. If, however, the defendants claim that the killing of the Jews was justified, but this claim does not commend itself to human reason and does not meet the requirements of law, then it is inevitable that the defendants committed a crime.
It is the privilege of a defendant to put forth mutually exclusive defenses, and it is the duty of the court to consider them all. But it is evident that the insistence on the part of the defendants that the massacres were justified because the Jews constituted an immediate danger to Germany inevitably weakens the argument that they acted only under duress exerted on them personally; and in turn, the "personal duress" argument enfeebles the "danger to Germany" argument. In two or three instances an attempt was made to show that the Jews in Russia held a high percentage of official positions, a percentage disproportionate to the size of the Jewish population. This was the most common theory utilized in Germany for the oppression and persecution of the Jews. By adducing the same excuse here the defendants involved acknowledged they were putting into physical effect in Russia an antipathy and prejudice already entertained in Germany against the Jewish race. There was no duty and certainly no right on the part of the defendants to go into Russia to equalize the official positions according to the proportion between Jews and non-Jews.
Defense counsel Dr. Mayer admitted that the Fuehrer Order violated the recognized laws and customs of war, but urged that Russia was not entitled to protection under international law. Apart from the fact that Russia was a party to the Hague Convention of Land Warfare--in fact, the Hague Conference of 1899 was initiated by Russia--the International Military Tribunal pointed out that the rules of the Hague Regulations have become declaratory of the common law of war. It further disposed of the objection by quoting approvingly from the memorandum issued by the German Admiral Canaris on 15 September 1941, in which he declared that it is contrary to military tradition, regardless of treaty or lack of treaty: "To kill or injure helpless people." Dr. Mayer also said, taking the same line as Dr. Maurach:"If this war was not an unjustified war of aggression, but a justified preventive war, then, on the basis of my explanations in the trial brief on the subject of the ideology, aims and practice of the U.S.S.R., to which I refer, the question arises, in how far the German Reich found itself, in this war against the U.S.S.R., in a genuine state of national emergency, and whether this justified the orders given by Hitler."
If Dr. Mayer means this, he collides head-on with a res judicata. The International Military Tribunal, after studying countless documents and hearing numerous direct witnesses of and participants in the event itself, declared:"The plans for the economic exploitation of the U.S.S.R., for the removal of masses of population, for the murder of Commissars and political leaders, were all part of the carefully prepared scheme launched on 22 June 1941 without warning of any kind, and without the shadow of legal excuse. It was plain aggression."
The annihilation of the Jews had nothing to do with the defense of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self-defense, is untenable as being opposed to all facts, all logic and all law.