The evidence of the Prosecution is documentary. In the course of the examinations of the defendants on the witness stand mistakes and inconsistencies were continually mentioned in connection with the discussion of the documents submitted by the Prosecution not only in the "Operational Situation Reports from the USSR" and in the "Reports from the Occupied Eastern Territories" which replaced them after 1 May 1942, but also in the discussion of the affidavits and personnel records of the defendants submitted by the Prosecution. I shall limit myself to the "Operational Situation Reports from the USSR" and the "Reports from the Occupied Eastern Territories", since the defendants' affidavits and the personnel records have been discussed in detail during the interrogations and, on each occasion have been subject to sufficient individual elucidation to give the Tribunal a thorough insight into their probative value. Moreover, they are discussed in the individual final pleas for the defendants. Regarded as individual cases the mistakes and inconsistencies in the "Operational Situation Reports from the USSR" and the "Reports from the Occupied Eastern Territories" might often appear unimportant, as for example, confusion in places, wrong dates, cases of the same figures being counted twice, and other accounting errors concerning liquidation figures mentioned in the reports. Nevertheless, as a whole they are of considerable importance for the question of probative value. In view of the serious nature of the charges brought against the defendants in the indictment there is not only a well-founded reason but also a need and a duty to subject the probative value of the reports submitted by the Prosecution to a careful, objective examination, for in the case of such all-inclusive charges, which as a rule the Prosecution did not advance against the separate defendants in an individual and well substantiated way, shades of meaning and individual wordings in the documents can be regarded as relevant evidence for the mental attitude or individual conduct of the defendants.
Here the examination must not only concern itself with the general probative value of the reports, but especially with the question of to what extent individual sentences or phrases can be regarded beyond any reasonable doubt as indentical with the reports originally issued by the defendants. Only by such an examination can be decided as to what extent the documents give a real impression of the actual happenings in Russia from which relevant evidence can be derived incriminating the individual defendants even in its individual findings. The greater part of the documents submitted by the Prosecution are not eye-witness reports or original operational and situation reports. Of the total number of about 200 documents which have been submitted there are only about 10 items which can be described as original reports, namely, scattered reports to or from offices of the army. Apart from these original documents, which numerically are hardly of any importance and the contents of which are dubious at least, -although even they are not free from errors of carelessness and deliberate misrepresentations -- they consist mainly of operational situation reports by the Chief of the Security Police and the SD, that is, reports which were prepared and summarized from various other reports. document books of the Prosecution only in extracts and excerpts. In preparing them those parts which were not relevant for the Prosecution were left out; it has been the general experience that such excerpts have always have a distorting effect in some way or other; they give a false impression of the nature of the document and disconnect Concrete statements contained in it -- even if they are true -from the context. operational situation report executions are shown as an insolated phenomenon, that is, taken out of the context of the actual events 4 Feb 1948_A_MSD_23_4_Hoxsie (Lea) and situations which were the reasons behind them and magnified into the sole basis of the activity of theEinsatzgruppen.
This fails to show the background conditions, what was happening at the front, the constant danger to which the members of the Kommandos, the German army and the peaceful Russian population were exposed by partisans, terrorists and sabotuers, the observation made on repeated occasions of the dominant part played by Jews among Soviet leaders and the partisan organization, the knowledge, constantly passed on by the members of the Kommandos, of the dominant part of the Jews in the ruthless establishment of Communism in Russia and in the mass liquidations of kulaks, property owners and members of the intelligentsia. It likewise fails to show the actual picture of the over_all activity of the Einsatzkommandos which, predominantly directed toward an enlightened pacification of the Russian areas, included constructive and progressive measures for the benefit of the population. Thus, these documents, which are presented in excerpt from, therefore frequently distort the basic subject in the original report and also prevent one from recognizing mistakes in details from the total context. In an affidavit presented by the Prosecution of the former Criminal Director Kurt Lindow, for a time Special Section Chief in RSHA, IV A 1, has confirmed the fact that the USSR Operational Situation Reports, which were published by the Chief of the Security Police and the SD under the file mark IV A 1, were, as a whole, compiled from the original reports of the Einsatzgruppen "which, were received in my Special Section by radio or written message." Einsatz reports were made; on the contrary, it only confirms their authenticity, which, besides, nobody has doubted. The way in which they were prepared, however, has been established with sufficient clarity by various statements made by witnesses for the defendants, but has also been especially shown in the affidavit submitted in Ohlendorf Document Book la as Document 32, Exh. No. 53, which was given by former Police Councillor Rudolf Fumy.
Fumy is to be adjudged the best specialist for this question, since as an official in special Section IV A 1 he collaborated personally from the very beginning in the compilation of the Einsatz reports and possesses a far more accurate knowledge than Lindow of the way and manner in which the reports were made. That the Operational Situation Reports "were compiled from the original reports of the Einsatzgruppen" must, therefore, be supplemented by the Fumy affidavit to the effect that, to be sure, the detailed original reports of the Einsatzkommandos etc. necessarily proveded the foundation, but that the Einsatz reports are not "moreover only to be regarded to a limited extent as a literal repetition of the original reports". According to Fumy's statement the Einsatz reports were free revisions of the original material received in Special Section IV A 1 of the RSHA. ly the case that the separate Einsatzkommandos and Sonderkommandos reported to the authorized Einsatzgruppen and that the latter then, in entirely different ways, summarized the reports and forwarded them to the Berlin central office. It is to be gathered from the various statements made by witnesses before this Tribunal that these original reports offered the first opportunity for errors to arise. When one of the defendants testified on the witness Stand concerning cessively high figures for the executions which had been carried out, in order to please Heydrich and "was not very exact with his zeros", this fact does not represent an isolated case, but was also applicable to Stahlegger, the chief of Einsatzgruppe A, and Thomas, the leader of Einsatzgruppe C. The defendant Ohlendorf has already called attention to this in his interrogation before the IMT.
(During this trial the uncontested statement was also made that this incorrect reporting originated already with the Kommandos in their reports to the Einsatzgruppen. Therefore, with respect to the figures in the documents submitted the defendant Ohlendorf, judging from his own experience has doubted if even half of the figures cited there come near to the truth. stand and by comparing reports to or from various offices concerning the same period of time (for example, from an Einsatzkommando to the army) that "tactical reports" were constantly made, that is, deliberately false reports which a unit made to protect itself against some other government office. or in the Einsatzgruppen either intentionally or unintentionally for personal or tactical reasons, which are considerable and therefore can in no way be ignored or belittled, were forwarded along the regular message chanel by radio, courier, or military mail to the office in Berlin which rewrote these reports, lacking any possibility of correcting them, or desiring to do so. In the very channelling of the report further errors would occur in radio transmission, which must also be taken into account. Anybody who is familiar with radio procedure knows well enough that mutilations or distortions which are not readily apparent are constantly creeping in. In many cases,then, inquiries are made concerning the correct text. However, wherever, apart from technical deficiencies, there is no compelling need to investigate the correct text or there is not enough time to do this, the receiving office will be satisfied if it can make the text understandable to some extent.
This latter situation actually existed in the RSHA. As must also be explained, they were always pressed for time and there was no authority for checking such things. Here, therefore, is one of the possibilities of explaining why obviously false place names and figures have been repeatedly pointed out in the Operational Situation Reports by witnesses. rewritten with a downright frivolous disregard for the facts, as has been explained and proved with sufficient clarity in the Fumy affidavit already mentioned. The RSHA received collective reports from the Einsatzgruppen, as well as from the agencies of the Wehrmacht, the Higher SS and Police Leaders, for revision. At the same time, however, it also received reports about individual occurrences. By reason of their varied natures and varied purpose these reports naturally covered periods of time, but in spite of over-lapping time periods, place and subject matter they had to be rewritten immediately as Einsatz reports in order to prevent an over-accumulation of material. The working apparatus for this purpose was improvised; an inadequate number of employees with insufficient technical training were swamped by a mass of material which had to be digested in a few hours almost every day in reports of up to 50 pages in length. Fumy employs the expression "nerve-racking" for this. The material could not be compared, there was no time for any further inquiries about it. The fact that it was not possible to do any reliable work in this way was known not only to those directly concerned in it but also to the superior offices in the department. The rewrite men became increasingly reconciled to this and let things slide. The desire for accuracy, as Fumy testifies, was still further decreased by the fact that Mueller, the Chief of Office IV, taking into account the political tensions at any given time, undertook to make changes which were not unimportant", and added or deleted things as he saw fit.
In summing up, therefore, concerning the probative value of the "Opera tional Situation Reports from the USSR" and the "Reports from the Occupied Eastern Territories," which have been submitted by the Prosecution as incriminating documents.
I can state that their probative value with respect to individual conditions and figures listed has not been proved. Insofar as the individual defendants are said to be directly incriminated by the reports, the Prosecution must offer more than merely a reference to an individual statement or an individual quotation from the reports which have been submitted.
DR. ASCHENAUER: Your Honor, I think this would be an appropriate place to adjourn.
PRESIDENT: The Tribunal will be in recess until tomorrow morning at 9:30.
(The Tribunal adjourned until 5 February 1948 at 0930 hours.)
* * * * A. Musmanno, presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
Military Tribunal II is now in session. God save the United States of America and this Honorable Tribunal.
THE PRESIDENT: You may proceed.
DR. ASCHENAUER: The questions which are circumscribed by the term "order" belong to the most difficult problems of jurisprudence. This has also been acknowledged by the Allied side. Professor Sheldon Glueck of Harvard University, defines this complex of questions in his book "War Criminals, Their Prosecution and Punishment", as definitely controversial and nebulous. "One of the most intricate technical problems which occurs at the trial of war criminals of the Axis, is contained in the protective assertion that the defendant in committing the prohibited action did so only in carrying out orders of his military superiors." The man who makes this statement is not a run-of-the-mill author, but the foremost American authority in the field of criminal law and criminology and the book in which he makes this judgment has prepared the theoretical basis for all the war crimes trials which we witness today in Germany and in Japan. The book by Professor Glueck has its counterpart in British literature in the essay from the pen of Professor Lauterpacht of the University of Cambridge regarding "The law of Nations and the Punishment of War Crimes" in the British Year Bookof International Law, 1944, page 58 ff. Professor Lauterpacht writes there in quite a similar manner. He defines the problem as opaque, intricate and contradictory in itself and states that the question to what degree consideration should be given to the claim of having acted upon superior orders, represents practically the most significant problem of the war criminal trials.
He writes: "The problem which has been raised by the claim of having acted upon superior orders is, as commonly admitted, a problem of great difficulties, not only in view of international but also of national law. How confused it is may be inferred from the fact that the solution accepted by British and American Military handbooks concerning war crimes are contradictory to those valid in both countries in the field of the constitutional and penal law. Beyond this, the law concerning this subject in those and in other countries in the field of national law is not free of ambiguities and apparent inconsistencies." tribunal in deciding such questions and advise urgently, to act with prudence. Therefore, the following question has to be examined in an especially calm, dispassionate and politically unbiased manner. Can the claim, of haying acted upon superior orders, in the case in question exclude the liability or only mitigate it?
Paragraph II 4 b of Control Council Law no. 10 implies that a total exclusion of responsibility cannot be considered under any circumstances. Because this regulation states: "The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime but may be considered in mitigation." This regulation must surprise everyone familiar with the pertinent American and British Military Jurisdiction. To wit, it is diametrically opposed to it. A universal exclusion of a claim of having acted upon superior orders was never considered legal in the Anglo-Saxon countries and is not considered to be legal even today with regard to its own citizens. the stipulation of such a strikingly biased point of view against the former adversaries of the Allies. I do not think that I err if I consider Professor Sheldon Glueck to be the spiritual originator.
Referring to section 347 of the American Rules of Land Warfare, Glueck states on page 157 of his book: "The complete and absolute protection of those below the status of 'Commander' in section 347 of the American Rules was probably adopted because the farmers had primarily in mind our own soldiers and the aim was to relieve them entirely of liability in war time in order to encourage greater discipline and obedience.
However, the principle in the rules applies also to any enemy soldiers it may be desirable to prosecute; and in that respect the Anglo-American standard may prove to be troublesome. The matter thus boils down to a question of policy, whether it is more desirable, all around, to retain the principle now in the military manuals or to modify it along the lined suggested. So far as it concerns proceedings in American military commissions the President as Commander-in-Chief can clarify the matter by revision of the American Rules of Warfare through the War Department. In the convention or executive agreement for establishing an International Criminal Court to try certain serious classes of war crimes, a rule of the kind proposed, if Implemented by a sound sentencing policy ought to furnish a satisfactory solution of the superior orders problem." a far-reaching and decisive legal effect. Professor Glueck's intentions are to bring about the unilateral sentencing of merely groups of persons, former war enemies, whom he considers to be punishable, in contrast to the former administration of law of his country.
He states verbatim: "Since the application of the principle of absolute non-liability found in the English and American Rules would render impossible many convictions of Axis war criminals, and since there are differences among the various member States of the United Nations in respect to the regulations and decisions governing the subject of superior orders, a new and realistic rule is necessary both for prosecutions in domestic courts (especially English and American) and those in the proposed International Criminal Court."
and ignore legal principles of long standing, such a manner of unabashed prejudiced jurisprudence is bound to cause particular astonishment if these are made by a scholar whose name belongs to the most renowned members of American jurisprudence.
Terms like "troublesome", "desirable", "question of policy", "realistic" are used in order to make inapplicable legal maxims, hallowed by decades of usage. All those points of view employed by Professor Glueck are such that every jurist must view them with distrust! In note 48 to chapter IX of his book, Professor Glueck refers as further justification of his opinion, to the legislative practice and jurisdiction of Nazi Germany, where such expost facto punishment was customary. It is unnecessary to touch upon this assertion any further, because if such kind of legislature and administration of justice has to be considered as reprehensible, since it is communis opinion of the entire Western civilized world then it ill suits the victors to abuse their own ideals by acting in the same spirit and to sacrifice the idea of right to the point of view of political expediency and practical considerations. as a matter of fact up to now, shall not remain unmentioned. The actions of the defendants would have to be judged pursuant to German law, according to the judicial interpretation of all European States. They were subject to German law and acted under German law; it was the law to which they had to turn for advice in cases of doubt and which decided as to the limits of their authority. Also, this principle of international law hallowed by long years of use is sacrificed by Professor Glueck to considerations of political expediency and practical considerations, by writing about it in the following way:
"Normally in law and in justice, it would have to be that law of the accused, since he could not justly be expected to know the law of the enemy nation that prosecutes him." However, Professor Glueck continues this would give the most lawless nations the possibility to whitewash militarists for the most flagrant violations of the laws of warfare. The Nazi law is so contrary to the most elementary principles of civilized justice tha t it may legitimately be ignored as "pathological". the absolute relinquishing of century old principles of personal liability, unacceptable to every progressive legal system. The Nazi jurisprudence has been charged with having sacrificed the idea of law and justice without hesitation always at a time when it was opportune for the necessities of political considerations. If, therefore those who have made it their bussiness to combat such abuses, now themselves put aside the postulates of progressive and fair legal thinking in order to realize a certain political aim, then one feels deeply disappointed in one's belief and hope of coming of a better world - a world a a world of law and order!
It seems also that the prosecution feels that way. Therefore, it attempts to refer to Article 47 of the German Military Penal Code. Thereto the following must be stated: in the East are regulated and outlined by orders, that is by Fuehrer orders. There is no doubt about it that the orders of Hitler, in his capacity as Chief of State, were of a special nature. All his orders enjoyed a particular obligation to obey them in view of the constitutional legal status of the Third Reich, which was bound by his authority as Chief of the State. Professor Jahrreiss stated in this respect during his questioning in the trial against the jurists, the following:
"In a state in which all power of decision is concentrated in the hands of one man, the orders of this one man are absolutely binding for the members of the hierarchy of officials.
This individual is their sovereign, their legibus solutus". (Truanscript, page 4243). Reich, insofar as it related to the constitutional law of the Greater German Reich, and the defendant Ohlendorf carried on his law studies and all other defendants grew up and lived in the knowledge and application of this literature. I quote verbatim from the book "The constitutional Law of the Greater German Reich" by Ernst Rudolf Huber:
"The Fuehrer combines in himself all sovereign power of the Reich; every public power in the state as well as in the Party is derived from the power of the leadership".
"He is the holder of all political power."
"The leadership authority is extensive and total; it comprises in itself all means of political organization; it extends to all spheres of public life; it includes all compatriets who are bound to loyalty and obedience toward the Fuehrer".
"He is" - thus it goes on "holder of the legislative power" in addition, however, also "holder of judicial sovereignty and power" in a word "supreme holder of all common functions." the years to such an extent that by the resolution of the Reichstag of 26 April 1942 (Reich Law Gazette I, page 247) he was given carte blache of an extent unparalleled in constitutional history, which must be regarded as a mere certification of a situation that had already existed for years. The Fuehrer received the power to issue ordinances on every subject possible having legal force. He received the power "as chief of state and supreme holder of the executive power, as supreme judge and Party leader at any given time - "if necessary to urge, every German -- be he a simple soldier or an officer, minor or high official or judge, directing or subordinate functionary of the Party, worker or employee - to fulfil his duties, with all means he regards as appropriate and in the case of a violation of these duties after conscientious examination, without regard to so-called traditional preregatives, to inflict on him due punishment, especially to remove him from his office rank and position without instituting the "prescribed proceedings". law, beginning about the middle of the 19th century, no member of the German people was entitled to refuse obedience to these announcements of the will of the head of the state, which had legal force.
The principles which Richard Thoma, the liberal democratic teacher of constitutional law had formulated already prior to the seizure of power by National Socialism in his manual of German criminal law, 2nd volume, page 137 applied: not change entirely, "no other principle may be taught than the one that the entire legal system valid in the state by law is placed at the disposal of the state authority or authorities to which the constitution deed transfers the legislative power." "It is conceivable that a legal maxim may seem to me to be simply unjustified, be it, because I am convinced, it was issued for arbitrary reasons (e.g. party hatred), be it that I feel it to be objectionable because of its contents which seems monstrous to me. Even in the case of such a rule I must admit, as long as the state authority regards it as being valid, that in the formal sense of the term it is a legal maxim, although I in foro interno.
.... give it the name of a rule of force or an ordinance of injustice." National Socialist but one of the very first representatives of the liberal -- democratic, political science. His opinion was not an individual opinion but the prevailing doctrine.It was thus the foundation of juridical ideology which OHLENDORF -- like many others among the defendants had been taught at German universities to be valid legal conception. By way of substantiating this, I mention one author who at present teaches at a university in the United States and various times has expressed his opinion with regard to the question of war criminals: Professor Hans KELSEN, the one-time leading authority on Austrian constitutional law. In his "Main Problems of Political Science" 2nd edition, 1923, page 56, he declares literally:
"The legal binding force of an legal maxim is not in the law."
And as late as 1927 the German Supreme Court emphasized:
"The legislator is autocratic and not bound by an in the constitution or in other ordinances."
(Decision of the Decisions of the German Supreme Court in civil law cases) I wish to emphasize once more that those doctrines and legal maxims were expressed with regard to the constitutional law of the Weimer democrary.
There can be no doubt that they had to be valid all the more in the National Socialist state which thereby neither violated the most elementary principles of civilized conception of law nor developed "pathological" law.
by the constitution connected with the duty of absolute obedience, may often appear incomprehensible to a foreigner. Any one being familiar with history will however have to admit that this by no means without precedent. I beg to point out the following: opinion of subordination and obedience in a letter which he sent to the members of the order in 1555 as follows (this being one of the most remarkable documents of world history):
"On the whole, I must not belong to myself by to my creator and mediator; I must permit myself to be led and moved as a little piece of was permits itself to be kneaded;......like he wishes and where he can use me best;.....I must behave like a dead man who has neither will nor insight.
Thus I must always can use me for whatever it wishes mo to do."
(The Spiritual Letters and Instructions of St. Ignatius of Leyola."
Collected and translated into German by Otto KARRER, Society of Jesus, 1922 page 255.
Translation authorized by the Catholic Church). And these principles have by no means been rescinded in our modern times up to the present.
In a singular way this conception of obedience in its formal basic structure is affiliated to that of Calvinism. To the question as to what was to be done if kings and princes spurned the rights of the people, disregarded the laws of morality and acted as tyrants, the reformer gave the unmistakable answer: The sovereigns of this world may claim, the obedience of their subjects, even if they are the most villainous tyrants (nequissimus tyrannus). The sufferings afflicted to the subjects by an undutiful sovereign must be borne in humble patience and the subjectsmust be self-contemplation and a deeper consciousness of built be induced to all the more eager supplications for divine assistance.
The subjects have to do their duty and leave all the rest to God.
With regard to this Josef Behatec: Calvin and the Law (1934) page 135 ff. past two years against Luther's doctrine of the subject's obedience to the state completes the picture of the European religious views with regard to the duty of obedience without my having to go into detail in this respect. nearly half a century -- under the Stuart Kings Charles II and James II -as a dogma which was especially upheld by the Tories and Oxford University. Thomas Babington Macaulay, the great British historian, devoted an extensive elaboration to this remarkable fact in his "History of England since the ascendance of James II to the throne." especially with regard to military orders and obedience, which are under discussion in the present trial, still fully applies, is shown in the well-known speech of the British Field marshal Montgomery concerning Army and Nation of the year 1946 in which he says: "No matter how intelligent the soldier is -- the Army would leave the nation in the lurch, if it were not accustomed to obey commands immediately. It is the soldier's duty unquestioningly to obey all orders given to him by the Army -- that is, by the Nation." obeyed HITLER'S order as an order issued by the German chief of State having the unlimited authority and powers described above, they were not only backed up by all German authorities on constitutional international law in the reign of HITLER but also by themost renowned representatives of jurisprudence of the former democratic Germany and foreign countries, especially of the United States of America, as well as by the incontestable principlesof all armies of the world.
This unquestioned legal situation and the binding force of an order is in no respect changed by Art. 47 of the German Military Penal Code.
They did not act in violation of Art. 47 of the German Military penal Code simply because an order by HITLER had legal force and thus being a newer law had precedence over the earlier Military Penal Code. Above all, Art. 47, according to its context does not intend to, and connot, give the opportunity and require it as one's duty to offer resistance to the legislator himself. Its prerequisite is a military superior of the one who issues the order to whom appeals can be made made. Fuehrer order was known to OHLENDORF and his co-defendants. OHLENDORF was fully aware of it. For to the question of the Presiding Judge as to whether he had deliberated about the questions coming up in connection with the execution of the order (page 686 of the Transcript) and, in addition, as to whether he had ever felt that the Fuehrer decreeswas an unlawful order, OHLENDORF unequivocally answered: "No". As he himself several times assorted, the defendant lacked the consciousness of illegality. As has been shown, he can in this respect place himself on the same level with domestic and foreign jurisprudence. In this connection and corresponding to the Anglo-Saxon conception that the consciousness of the unlawfulness of a deed, the Tribunal tried during OHLENDORF's interrogation to find out his reaction to the Fuehrer decree in a moral respect. OHLENDORF strictly rejected a moral evaluation of the Fuehrer Order. No regarded the order as unwise from a political viewpoint and as wrong because of itspossible consequences from a standpoint of international law and general political aspects. As OHLENDORF declared, he, however, never undertook a moral appraisal since HITLER as German chief of State had issued it with legal binding force and compulsory effect for him as receiver of the order and since HITLER himself had to take the responsibility for the moral side of his order.
The further detailed interrogation by the Tribunal has proved unequivocally that OHLENDORF during the -- execution of the order had no consciousness of moral wrong. one would uphold a legal obligation of investigating the Fuehrer order with regard to its lawfulness and its capability of being uphold from a moral viewpoint, there are further viewpoints which preclude a punishment of the defendant. He justly cites the legal institutions an emergency caused by orders and "Unexpectability" the application of which Central Council Law No. 10 obviously does not preclude.
Thus already the IMT has established (Chapter V at the end): "The actually decisive point, which is to be found in various gradations in the penal code of most nations, is not the existence of such an order, but the question as to whether a corresponding alternative (resistance) to moral law actually was possible." and the Presiding Judge of this Tribunal in the MILCH decision emphasized himself (Tribunal II, Case 2, page 96 German, in the reasons given by Judge Musamnno)" It was never our intention and never has been urged that he (MULCH) should have ever chosen any way which would have resulted in the loss of his life". With regard to the same problem the US military Tribunal states in Case 5 in discussing Art. 4, par. B of Section 11 of the Central Council Law No. 10 (Transcript of session of 22 December 1947, page 18 ff):
"In our opinion these regulations are not meant to deprive which has here been claimed for them.
This legal principle Wharton's "Criminal Law", Vol.
I, Chapter VII, section 126, as substantiation:
"The fact of a state of emergency may be used as protective threatening legal prejudice".In a footnote to sub-section 384 in Chapter XIII of Wharton's "Criminal Law", Vol I the fundamental definition of the protective assertion of a state of emergency isdescribed as follows:
"A state of ermergency is a reason for justification, since The question of unexpectability is closely connected with this question of state of emergency.