The Defense of Necessity

Discussions on the Holocaust and 20th Century War Crimes. Note that Holocaust denial is not allowed. Hosted by David Thompson.
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The Defense of Necessity

Post by David Thompson » 23 Aug 2007 18:53

There seems to be a renewed interest among our posters on the issue of fairness in the postwar allied war crimes trials. I thought it might be helpful to devote threads to some of the defenses that the defendants raised, and show how the military tribunals handled them.

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 ):
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.

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Post by David Thompson » 24 Aug 2007 06:38

Here is another discussion of the defense of necessity, from the judgment in the "WHVA case" (Opinion and Judgment of the United States Military Tribunal II, in Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10. Vol. 5: United States v. Oswald Pohl, et. al. (Case 4: 'Pohl Case'). US Government Printing Office, District of Columbia: 1950. pp. 958-1062.)
The defendants are charged in the indictment as officials of the Wirtschafts- und Verwaltungshauptamt (commonly called the WVHA) of the Schutzstaffeln der Nationalsozialistischen Deutschen Arbeiterpartei (commonly known as the SS). The whole sordid history of the SS and its criminal activities has been told in detail in the judgment of the International Military Tribunal (pp. 268-273, Official Edition), and need not be repeated here. In this ease, the Tribunal is concerned only with the members of the WVHA, or Economic Administrative Main Office, and its predecessors, the Hauptamt Verwaltung und Wirtschaft, or Main Office Administration and Economy, and the Hauptamt Haushalt und Bauten, or Main Office Budget and Buildings.

Early in 1942, the WVHA was organized under Himmler's order to coordinate and consolidate the administrative work of the SS. The organization of the former Administrative Department and Department of Budget and Buildings of the SS was taken over intact, and, in addition, another Main Office of the SS was incorporated into the WVHA, namely, the Inspekteur der Konzentrationslager, or Inspector of Concentration Camps. Of this revamped organization, the defendant Pohl was continued as chief and was in supreme command. The WVHA was divided into five Amtsgruppen, or departments [office groups or divisions], namely:

Amtsgruppe A -- budget, law and administration.
Amtsgruppe B -- supply, billeting, and equipment.
Amtsgruppe C -- works and buildings.
Amtsgruppe D -- concentration camps.
Amtsgruppe W -- economic enterprises.

Each Amtsgruppe was headed by a chief and was, in turn, divided into Aemter or offices. For example, Amtsgruppe A was subdivided into Amt A I to Amt A V, Amtsgruppe B was likewise subdivided, while Amtsgruppe W was subdivided into Amts W I to Amt W VIII. Each Amt or office was charged with some specialized phase of the general field covered by its Amtsgruppe.

The WVHA, as one of the twelve main offices of the SS central organization, was charged with the administrative needs of the entire SS, including supplies of every' kind, billeting, transportation, and also the administration of the entire system of concentration camps. This did not involve the commitment to, or release of inmates from concentration camps, but it did involve the maintenance and administration of the camps and the use of the inmates as a source of forced labor.

In addition to its functions as an administrative agency, WVHA managed and controlled a vast number of economic enterprises which were either owned or controlled by the SS. These enterprises embraced an extensive industrial empire, extending from Holland to Poland and Hungary, and were operated almost entirely by the use of concentration camp labor. The operation and administration of these enterprises was the task of Amtsgruppe W, of which defendant Pohl was the chief and defendant Georg Loerner the deputy chief. Ancillary to Amtsgruppe W was an amorphous organization called staff W, headed by the chief of staff W, or chief W. This staff exercised general administrative supervision of the W industries, negotiated for and procured new enterprises, arranged financing, floated loans, negotiated financial matters with the Reich Minister of Finance, and in other ways performed broad coordinating functions within the framework of the SS industries. The chief of staff W was at one time the defendant Hohberg and later the defendants Volk and Baier.

More than 25 of the SS industries were controlled, through stock ownership by a parent holding company, known as Deutsche Wirtschaftsbetriebe or DWB, of which defendant Pohl was the chief officer. These industries included a wide range of projects: stone quarries, brick manufacturing plants, cement mills, pharmaceutical factories, real estate, housing, building materials, book printing and binding, porcelain and ceramics, mineral water and fruit juices, furniture, foodstuffs, textiles and leather, etc. For the purposes of this case, four of these industries are of particular significance:

(1) The Deutsche Erd- und Steinwerke, known as DEST, which operated five granite quarries, six brick and tile plants, and a stone-cutting plant.

(2) The Klinker-Zement, manufacturing brick and cinder block, fireproof products, ceramics, lime, and chalk. This company had large subsidiaries at Golleschau, Prague, Lvov, and Bialystok.

(3) Ostindustrie, or OSTI, organized in March 1943 and dissolved a year later, which operated and later liquidated all the confiscated Jewish industries in the Government General, including foundries, textile plants, quarries, glass works, and others. Enforced Jewish labor was employed in these enterprises.

(4) The Deutsche Ausruestungswerke, or DAW, the German Equipment Works, which operated various industries in seven concentration camps, using forced inmate labor.

The freedom of man from enslavement by his fellow men is one of the fundamental concepts of civilization. Any program which violates that concept, whether prompted by a false feeling of superiority or arising from desperate economic needs, is intolerable and criminal. We have been told many times,
"Germany was engaged in total war. Our national life was endangered. Everyone had to work."

This cannot mean that everyone must work for Germany in her waging of criminal aggressive war. It certainly cannot mean that Russian, and Polish, and Dutch, and Norwegian noncombatants, including women and children, could be forced to work as slaves in the manufacture of war material to be used against their own countrymen and to destroy their own homelands. It certainly cannot mean, in spite of treaties and all rules of civilized warfare (if warfare can ever be said to be civilized), that prisoners taken in battle can be reduced to the status of slaves. Even Germany prior to 1939 had repudiated any such fallacious position. And yet, under the hypnotism of the Nazi ideology, the German people readily became complaisant to this strange and inhuman system. Under the spell of National Socialism, these defendants today are only mildly conscious of any guilt in the kidnaping and enslavement of millions of civilians. The concept that slavery is criminal per se does not enter into their thinking. Their attitude may be summarized thus:
"We fed, clothed, and housed these prisoners as best we could. If they were hungry or cold, so were the Germans. If they had to work long hours under trying conditions, so did the Germans. What is wrong in that?"
When it is explained that the Germans were free men working in their own homeland for their own country, they fail to see any distinction. The electrically charged wire, the armed guards, the vicious dogs, the sentinel towers -- all those are blandly explained by saying, Quote:
"Why, of course. Otherwise the inmates would have run away."
They simply cannot realize that the most precious word in any language is "liberty." The Germans had become so accustomed to regimentation and government by decree that the protection of individual human rights by law was a forgotten idea. The fact that the people of the Eastern territories were torn from their homes, families divided, property confiscated, and the able-bodied herded into concentration camps, to work without pay for the perpetrators of these outrages -- all this was complaisantly justified because a swollen tyrant in Berlin had scribbled "HH" on a piece of paper. And these are the men who now keep repeating, ''nulla poena sine lege."

This Tribunal, in its judgment in the case of United States vs. Erhard Milch [Trials of War Criminals before the Nuernberg Military Tribunals, Vol. II, pp. 789-790.], had occasion to say:
"The German nation, before the ascendancy of the NSDAP, had repeatedly recognized the rights of civilians in occupied countries. At the Hague Peace Conference of 1907, an amendment was submitted by the German delegate, Major General von Guendell, which read: 'A belligerent is likewise forbidden to compel the nationals of the adverse party to take part in the operations of war directed against their country, even when they have been in his service before the commencement of the war.'
"The German manual for war on land (Kriegsbrauch im Landkriege, Edition 1902) stated:
'The inhabitants of an invaded territory are persons endowed with rights * * * subject to certain restrictions * * * but who otherwise may live free from vexations and, as in time of peace, under the protection of the laws.'"

A faint effort has been made to show that, although no formal judicial proceeding in the nature of an accusation and trial was had in each case, nevertheless each commitment to a concentration camp was preceded by a sort of "cabinet trial" by the Gestapo and that this complied with German Law. To put it bluntly, the Tribunal does not believe a word of it. Commitments to concentration camps did not depend upon individual conduct but were the carrying out of a broad categorical national political policy, frankly announced by Himmler. We can hardly be expected to believe that the thousands of Eastern women in Ravensbrueck and the boys and girls who were liberated from the concentration camps by the Allied Armies were accorded even a "cabinet trial." When whole villages were deported en masse, it is ridiculous to believe that each of the inhabitants was accused of some infraction of German Law, given a hearing of even the "cabinet" variety, and then solemnly found guilty and committed. Could any rational person believe that this or any comparable procedure accompanied the annihilation of the ghetto at Warsaw

Far from making any attempt at formal accusation and determination of guilt, a conscious effort was made to evade embarrassing steps which slowed up the program of extermination. On 13 October 1942, Thierack, Reich Minister of Justice, wrote to Martin Bormann, stating (NO-558, Pros. Ex. 335):
"* * * I intend to turn over criminal proceedings against Poles, Russians, Jews and gypsies to the Reichsfuehrer SS. In so doing I base myself on the principle that the administration of justice can only make a small contribution to the extermination of members of these peoples. The Justice Administration undoubtedly pronounces very severe sentences on such persons, but that is not enough to constitute any material contribution towards the realization of the above-mentioned aim.

* * * I am * * * of the opinion that considerably better results can be accomplished by surrendering such persons to the police, who can then take the necessary measures unhampered by any legal criminal evidence. * * * The police may prosecute Jews and gypsies irrespective of these conditions."
This specious and shallow excuse has been offered seriously in justification of a nation-wide policy of deportation and slavery. We have witnessed a strange anomaly in this case. Defendants and their witnesses have bowed their heads in profound shame at the evidence of mass murder and wholesale extermination, but as to the cruel enslavement of whole races, they evidence little or no feeling of guilt or culpability whatsoever. They spoke freely and made voluminous records of "prisoner labor" and "inmate labor." They made elaborate industrial plans and wrote without shame, "We have been promised 8,000 Jewish laborers for this enterprise." They planned and started pretentious monument to the Nazi ideology and wrote, "Sauckel says that Eastern laborers cannot be furnished now, but that there should be no difficulty after the war." The SS economic leaders carried on extended negotiations over what they euphemistically called "prisoners' wages." Elaborate sliding wage scales were drafted and published. But in fact all this had nothing to do with wages. Not one mark was paid to the wage earners. The peons who wore the convicts' garb and carried the heavy stones up to the hill from the quarry at Mauthausen received only potato soup and a pallet of straw for their work. "Wages" referred to the amount the SS and other industries should pay per hour to the German Reich, the owner of the slaves. It seems to have been taken for granted by the Nazi leaders and the SS that mass deportation to enforced labor was a natural and legitimate concomitant of successful invasion, and that the civilian population was merely a part of the victor's spoils.

Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery -- compulsory uncompensated labor would still remain. There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.

The extent of the deportation of Eastern civilian laborers and the ruthless manner in which they were seized and abducted has been related in detail in the judgment of the International Military Tribunal (pp. 243-247, Official Edition), To repeat the shocking story in the judgment in this case would serve no useful purpose. It is sufficient simply to state that it has been repeatedly and conclusively proved before this and other Tribunals that about 5,000,000 men, women, and children were violently seized and forcibly deported as slaves. As to the systematic extermination of the Jews, the International Military Tribunal has found (pp. 247-252, Official Edition) that, in pursuance of a fanatical public policy, it was deliberately decided to exterminate an entire race of human beings. There is no way to determine the total number of Jews who were killed, but in testimony before the International Military Tribunal it was stated that one military group operating in the East killed 90,000 people in one year, and another group killed 135,000 Jews and Communists in the first four months of the program. With these findings of fact by the International Military Tribunal this Court is in full accord and adopts them as found facts in the present case.

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Post by David Thompson » 26 Aug 2007 04:35

The defense of necessity sometimes resulted in an acquittal. Generaloberst Lothar Rendulic was charged by an American miltary tribunal in the "hostage case" with the war crime of spoliation (unnecessary destruction) during the evacuation of northeastern Norway in 1944. The tribunal found him not guilty of that charge, holding that Rendulic's acts could have been seen as necessary by a reasonable man under the circumstances. The portion of the judgment discussing the issue can be seen here:
The record shows that the Germans removed the population from Finmark, at least all except those who evaded the measures taken for their evacuation. The evidence does not indicate any loss of life directly due to the evacuation. Villages were destroyed. Isolated habitations met a similar fate. Bridges and highways were blasted. Communication lines were destroyed. Port installations were wrecked. A complete destruction of all housing, communication, and transport facilities took place. This was not only true along the coast and highways but in the interior sections as well. The destruction was as complete as an efficient army could do it. Three years after the completion of the operation, the extent of the devastation was discernible to the eye. While the Russians did not follow up the retreat to the extent anticipated, there are physical evidences that they were expected to do so. Gun emplacements, fox holes, and other defense installations are still perceptible in the territory. In other words there are mute evidences that an attack was anticipated.

There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal. After giving careful consideration to all the evidence on the subject, we are convinced that the defendant cannot be held criminally responsible although when viewed in retrospect, the danger did not actually exist.

The Hague regulations prohibited [Annex to Hague Convention No. IV, 1907, Article 23g. (Treaties Governing Land Warfare, United States Army Technical Manual 27-251, 1944, p. 25.)]:
"To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war."
The Hague Regulations are mandatory provisions of international law. The prohibitions therein contained, control, and are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary. The destruction of public and private property by retreating military forces which would give aid and comfort to the enemy may constitute a situation coming within the exceptions contained in Article 23g. We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time. The course of a military operation by the enemy is loaded with uncertainties, such as the numerical strength of the enemy, the quality of his equipment, his fighting spirit, the efficiency and daring of his commanders, and the uncertainty of his intentions. These things when considered with his own military situation provided the facts or want thereof which furnished the basis for the defendant's decision to carry out the "scorched earth" policy in Finmark as a precautionary measure against an attack by superior forces. It is our considered opinion that the conditions, as they appeared to the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act. We find the defendant not guilty on this portion of the charge. ... 50#p489650

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Re: The Defense of Necessity

Post by David Thompson » 07 Mar 2011 16:19

This digest on the defense of necessity as it existed in WWII is from Law Reports of Trials of War Criminals vol. XV, United Nations War Crimes Commission (1949), pp. 175-176:

In the High Command Trial, the Tribunal conceded that the plea of military necessity did, in the circumstance proved, serve to exculpate the accused on certain charges concerning spoliation. It was emphasised that the defendants were " in many instances in retreat under arduous conditions wherein their commands were in serious danger of being cut off. Under such circumstances, a commander must necessarily make quick decisions to meet the particular situation of his command. A great deal of latitude must be accorded to him under such circumstances. What constitutes devastation beyond military necessity in these situations requires detailed proof of an operational and tactical nature."(4)

The Tribunal which conducted the Hostages Trial was also called upon to decide on the validity of pleas based on alleged military necessity put forward by the defendants in that trial.(5) It decided that " Military necessity or expediency do not justify a violation of positive rules . . . The rules of international law must be followed even if it results in the loss of a battle or even a war ". The Tribunal added, however, that the prohibitions contained in the Hague Regulations " are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary "(6) and pointed out that Article 23 (g) of these Regulations prohibited " the destruction or seizure of enemy property except in cases where this destruction or seizure is urgently required by the necessities of war. "(7)

Like the Tribunal which conducted the High Command Trial, that before which the Hostages Trial was held was of the opinion that the plea of necessity might be applicable in the circumstances of an army badly harassed while in retreat : " The destruction of public and private property by retreating military forces which would give aid and comfort to the enemy may constitute a situation coming within the exemptions contained in Article 23 (g)."
(3) See also p. 156.
(4) See Vol. XII, pp. 123-6.
(5) See Vol. VIII, pp. 66-9.
(6) Italics inserted.
(7) Italics inserted.


The Tribunal thus adopted a favourable attitude to the plea as it related to the acts of the accused Rendulic in his retreat before the Russian army in Finmark, Norway.(1)

This may be the appropriate place, however, to mention a separate ruling by the Tribunal acting in the High Command Trial, which, while not referring to armies in retreat, may possibly be regarded as an application of a rule as to necessity ; the Tribunal approved the opinion that " A belligerent commander may lawfully lay siege to a place controlled by the enemy and endeavour by a process of isolation to cause its surrender. The propriety of attempting to reduce it by starvation is not questioned. Hence the cutting off of every source of sustenance from without is deemed legitimate. It is said that if the commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten the surrender. "(2)

The plea of military necessity has been more often rejected in war crime trials than accepted, however ; indeed the success of Rendulic and of the accused in the High Command Trial in this respect was exceptional.(3) A somewhat similar but more general plea was put forward in the Mulch Trial, that " Modem war means total war and as such has suspended, in several points, international law as it existed up to now ", was not allowed by the Tribunal which tried the case and Judge Musmanno made some remarks on his own attitude to it.(4) Substantially the same plea was rejected in the Krupp Trial.(5)

It should be added that the Tribunal conducting the High Command Trial immediately before reading the passage quoted above, stated that the view that military necessity includes the right to do anything that contributes to the winning of a war " would eliminate all humanity and decency and all law from the conduct of war and it is a contention which this Tribunal repudiates as contrary to the accepted usages of civilised nations. Nor does military necessity justify the compulsory recruitment of labour from an occupied territory either for use in military operations or for transfer to the Reich, nor does it justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation. Looting and spoliation are none the less criminal in that they were conducted, not by individuals, but by the army and the State.

" The devastation prohibited by the Hague Rules and the usages of war is that not warranted by military necessity. This rule is clear enough but the factual determination as to what constitutes military necessity is difficult. "(6)

It may be mentioned here that Article VIII of the Chinese Law of 24th October, 1946, Governing the Trial of War Criminals, provides, inter alia, that the circumstance that war crimes were committed out of political necessity shall not exonerate the offenders.(7)
(1) See Vol. VIII, pp. 67-9.
(2) See Vol. XII, p. 84.
(3) Instances of the rejection of the defence have been mentioned in Vol. XII, p. 127. Compare also Vol. V, p. 35, Vol. VI, p. 63, Vol. VII, p. 10 and Vol. X, pp. 138-9.
(4) See Vol. VII, pp. 44 and 64-5.
(5) Vol. X, p. 133.
(6) Vol. XII, pp. 93-4.
(7) Vol. XIV, p. 157.

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Re: The Defense of Necessity

Post by David Thompson » 10 Mar 2011 00:00

An unsourced opinion post from murx, mistaking the defense of military necessity for the defense of self and others, and inviting additional opinion posts commenting on his confusion, was removed by this moderator pursuant to previous warnings - DT. ... 7#p1547717 (sourcing) ... 1#p1514191 (sourcing) ... 3#p1522883 (sourcing) ... 7#p1527767 (off-topic flamebait)

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Re: The Defense of Necessity

Post by murx » 12 Mar 2011 05:03

If that refers to "putative self defense" and its wrong interpretation in another post (or its different defintion between legal systems): The two ducuments which I had translated and (correctly) summarized, are attached. Thanks for clearing up my state of confusion.
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