This was also expressed by Military Tribunal IV in the recent verdict against Flick et al on page 7 of this verdict.
1. This single document, which comes into consideration as evidence against Naumann insofar as executions within the territory of Einsatzgruppe B are mentioned therein, contains the following violations of the basic rules for the taking of evidence, which must be considered as well established and therefore must be observed if the truth is to be arrived at. observations of the author of the document. The author of this document belonged neither to the staff of Einsatzgruppe B nor to a Sonderkommando or Einsatzkommando. He was not even in Russia, but compiled the document in the document in Berlin, for, as I have already mentioned the Operational Situation Reports were prepared, in the form in which they are presented here, by members of Office IV of the RSHA in Berlin. It is not known from what records this document has been compiled. Furthermore, the identity of the author is not known, so that there is no knowledge about whether it was a reliable person who had compiled the operational Situation Reports with the requisite care. were made by persons who were reporting on things they had themselves observed. According to the evidence taken, this is even improbable. Therefore it is a matter of hearsay evidence, which is inadmissible according to the rules for taking evidence in all civilized countries, becaue hearsay evidence contains so many false sources that a just decision cannot be founded on it. Hearsay evidence itself is inadmissable according to all the recognized rules for the taking of evidence. But as we must assume, in this document it is a matter of hearsay evidence of the third, fourth or even a higher degree. Furthermore, the document is not signed.
according to the recognized rules of court procedure, and this by a witness who will be faced by the defendant and who then also states specirically under oath, where the document was found. This condition has also not been fulfilled. It is therefore more than doubtful whether the facts reported in the Operational Situation Reports have actually occurred. and a claim to a procedure in which all rules of the law of procedure are adhered to. It is in no way intended to disclaim the assertion that executions were carried out by the Einsatz and Sonderkommandos subordinate to the Einsatzgruppe while Naumann was Chief of Einsatzgruppe B. The defendant Naumann has not discalaimed this assertion during his interrogation as a witness. But on account of the explained violations against recognized rules of procedure the offered document does not give proof of the fact that executions were carried out to the extent stated in the Operational Situation Report, especially under the circumstances stated there. It can rather he merely considered as proven that executions took place in which the number of executed persons and the detailed circumstances have not been ascertained. Especially the numbers of executions appear much too high. This is shown by the fact that during the period covered by the report in the sphere of influence of Einsatzgruppe B, the Fuehrer order had been carried out for quite some time already under Nebe, the predecessor of Naumann as testified to by the defendants Blume and Steimle. It appears therefore as absolutely believable if Ott for instance, who in March 1941 was Commander of Sonderkommando 7b with Einsatzgruppe B, declares, that at the time he took over Sonderkommando 7b there was no further action to register any Jews. Operational Situation Report dated 21 April 1943 while in the witness stand. The soundness of the reasoning given in this respect is not to be rejected offhand.
Also Ohlendorf and Nosske have doubted the reporting. Worth mentioning in this respect is that Ohlendorf too, declared while in the witness stand, execution of Jews and Communists happened in the first part of the Campaign more often than in the year 1942. As evidence to the fact that the numbers mentioned in the Operational Situation Reports do not have an absolute value as evidence, reference may finally he made yet to the Affidavit of Fumy who is very well acquainted with the matter as he collaborated in the compilation of the Operational Situation Report, and who due to his own observations is best able to judge whether these reports are reliable. If Naumann states therefore in the witness stand, that according to its form the compilation of the Operational Situation Report dated 21 April 1942 is not at all familiar, then this appears credible? for this form originates obviously not from the report of the Einsatzgruppe B. In its rebuttal the Prosecution has offered as proff for the numbers mentioned in the Operational Situation Report dated 21 April 1942 regarding executions carried out, the documents USSR 48 and 56, Exh. No. 234 and 235.
THE PRESIDENT: Dr. Gawlik, do you think that this might be a good place in which to suspend for the luncheon recess?
DR. GAWLIK: Yes.
THE PRESIDENT: The Tribunal will be in recess until 1:45.
(A recess was taken.)
(The hearing reconvened at 1345 hours, 5 February 1948.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Dr. Gawlik, I want to make just a short announcement. We are informed by the Translation Section that the final summation plea in behalf of the Defendant Bluem has not yet been received there. Some word should be gotten to counsel for Blume to see to it that he immediately hands in his manuscript.
DR. GAWLIK (Attorney for the Defendant Naumann): Your Honor, as a preresentative for Dr. Aschenauer, I ask that you permit the Defendant Ohlendorf to be excused from tomorrow's session, because he is to be interrogated by Mr. Wolf.
THE PRESIDENT: The Defendant Ohlendorf will be excused from attendance in court tomorrow.
DR. GAWLIK: Before the recess I was discussing the report of the 21st of April, 1942. I shall continue my final plea: numbers listed in the Operational Situation Report, dated 21 April 1942, regarding executions carried out, the documents USSR 48 and 56. the documents were offered. First of all I point to the fact that the text of both documents corresponds in part word for word. The numbers mentioned also correspond exactly. Both documents are obviously parts of the same record. The contents of the documents have no connection at all with the acts of Naumann. There reference is rather made to how many dead were found in the mass-graves. The samll percentage of cases, that death was due to the gun shot wounds. The cause of death is unknown otherwise. One should not overlook the fact, that the less immediate vicinity of Smolensk in which the graves were found, was twice within two years the theatre of stubborn fighting. If one assumes that, in so far as gunshot wounds were the cause of death, these were due to executions, which is also not an established fact, then the further question arises, by whom and on whose orders these excutions took place.
I would also briefly like to mention in this respect that the victims of Katyn for instances were also mentioned in these reports, those, who according to German reports have always been designated as victims of executions carried out by Russian agencies. It has not been ascertained to this day who actually carried out these executions. Before the International Military Tribunal this question has also not been cleared despite the fact that three witnesses of the Russian Prosecution and three witnesses of the German defense have been interrogated in this respect. the mentioned documents are absolutely without value as proof of the act incriminating Naumann, I would like to mention addition that Naumann was active in Smolensk only during part of the period in which, according to the reports, the demise of the bodies found would fall. Besides, any connection between the crimes mentioned in the reports and Naumann's activity is missing. None of the persons mentioned in the reports with the exception of Naumann, was a member of the Einsatzgruppe Units. What Naumann is supposed to have done is also not mentioned in the reports. by the film offered by the Prosecution as evidence. That is why I objected at the time against the acceptance of the film as evidence and the Tribuanl sustained this objection too. Exhibits 234 and 235 have therefore no value at all as evidence in the proceedings against Naumann and are thus eliminated as evidence. mentioned by me, it has only insignificant value as evidence. Dure to statements made by Naumann it may only be considered as proven, that the Einsatzkommandos under his command carried out executions due to the Fuehrer order. No evidence has been offered in ragard to date, place, and detailed circumstances.
In evaluating this case from a criminal point of view, I took as a basis the legal principles already laid down by Military Tribunal II in the case against Milch, Naumann is, according to the principles laid down by this Tribunal, only criminally liable for the executions carried out by units of his group, if the following questions can be answered positively beyond any reasonable doubt:
1. Did the defendant Naumann take part in the executions personally?
2. Have these been carried out at his direction or order?
3. Had Naumann previous knowledge of the executions before they were carried out?
4. If this proves to be correct, did he have the power and opportunity to have them stopped?
5. If this also proves to be correct, did he fail to act and did he become thereby particeps criminis and accomplice?
As for 1: nor did he personally take part in any executions. The Prosecution has neither maintained this, nor offered any proof to this effect. It has especially not offered any proof to the effect that Naumann killed the persons mentioned in Document NO 3276, Exh. 66 (Volume II B, Page 66). It is shown by the Operational Situation Report that these persons were executed by the Einsatz and Sonderkommandos. This becomes evident also from the statements made by Naumann on the witness stand (Protocol Page 820 and 834 German, Page 814 and 128 English) according to which the Einsatzgruppe itself, i.e. the Staff, did not carry out any executions. stand, at least for the time when Naumann was Chief of the Einsatzgruppe (Protocol Page 4015 German Page 3950 English).
As for 2: orders to put these executions into effect.
In particular, Naumann did not pass on the (Fuehrer (rder) to the units under his command. As has been shown already, the executions were not carried out by the Einsatzgruppe itself, i.e. by the Group Staff, during the time when Naumann was Chief of the Einsatzgruppe. If, therefore, Naumann had given them to the Sonder-and Einsatz-Kommandos. But even to them Naumann did not give any execution orders, nor did he pass on to them the Fuehrer Order.
Of course, the Prosecution concludes from Naumann's position as Chief of the Einsatzgruppe that Naumann must have given such orders. Hosever, they were unable to prove this. Naumann, when in the witness box being directly examined and cross-examined, again and again asserted that he had given no such orders. (Transcript pages 834/35, 879, 880, 883, 887, 901 of the German verson; pages 828/29, 869, 871, 875, 889 of the English version.) The additionally adduced evidence only corroborated these statements of Naumann. of the ever having received from Naumann an order for execution or to the effect that the Fuehrer Order had been conveyed to him by Naumann. In particular was this affirmed by the co-defendants Steimel, Ott, and Klingelhoefer who held responsible positions in the Einsatz-and Sonder-Kommandos under the Command of the Einsatzgruppe B. If Naumann had given orders for execution or had passed on the Fuehrer Order these witnesses would have had to know it by all means, in particular Ott, who assumed his duties in Russia after Naumann was there. None of these witnesses, however, has confirmed this. Steimle, for instance, gave evidence that, indeed, he had discussed the Fuehrer Order with Naumann, but that Naumann had never given him any orders. In the cross-examination, too, Steimle stood by these his statements inspite of the fact that the Prosecution tried with all means at their disposal to shake the witness and extract from him a statement according to which Naumann was the one who gave or transmitted to him the Execution Order (Transcript pages 2073-2075, 2080-2085 of the German version, pages 2027-2029, 2034-2039 of the English version). Ott, too, repeatedly declared on the witness stand under direct and cross examination that he had never received from Naumann an order for execution, also he never had received from him the order that the Sender-Kommando 7 B under his command was to take stricter measures.
Ott particularly declared having heard only thrigh his predicessor Rausch about the existence of this order which Naumann had not even mentioned to him when introducing him to his duties (Transcript pages 3776-3778, 3828-3830, 3762/63, 3834/35 of the German version, pages 3715-17, 3766-3768, 3701/02,3370/71 of the English version.) These statements of Ott appear to us credible above all for the particular reason that they tally with the statements he made when he was subject to interrogation by Wartenberg. At that particular time Naumann had not yet been arrested and it was generally believed that Naumann was dead (Transcript page 3772 German, page 3711 English version.) he never had received any execution orders from Naumann (Transcript p. 3947 German, page 3884 English.) as they come from co-defendants who cannot count on being exonerated by such declarations. To doubt the credibility of those statements there is all the less cause for the simple reason that the Fuehrer Order was known to the Einsatz- and Sonder-Kommandos already a long time before Naumann took up duties in Russia. The evidence of the case in Chief shows beyond a doubt that the Fuehrer Order was issued not only to the Chiefs of the Einsatzgruppen, but also to the Leaders of the Einsatz- and Sonder-Kommandos already before the beginning of the Russian campaign and had since then existed continuously within the units of the Einsatzgruppen. (Transcript Naumann pages 819,823, 867, 883, 901, 906 German version, pages 813, 815/16,856 871, 889, 893 English version; Ohlendorf p. 524, 533; Blume p. 1811-12; Ott p.
3844 German, p. 3762 English; Jost p. 1273, 1198). Naumann was also advised of the existence of this order within the units under his command when he took up his duties in Russia. (Transcript p. 823, 864-65, German; 815/16, k54 English.) There was no occasion whatever for Naumann himself, therefore, to issue orders for execution, nor to transmit the Fuehrer Order again to the units under his command. dated 24 April 1947 (Dec. B. II B, p. 57, Doc. No. 2993, Exh. 67) that Naumann, himself, issued orders for executions. However, in this affidavit Ott only stated that Naumann gave the order to deposit the valuables, taken from the victims, with the Einsatzgruppe. Naumann *---* 24 April 1947 by declaring that this order did not originate with Naumann, but with his predecessor Nebe (Transcript p. 3802, 3803 German, p. 3740/41 English.) Moreover, it is incomprehensible how one can deduce from such an order, had it been given, that this constitutes an order to effect executions. Quite to the contrary, this statement would clearly elucidate that the issue of this order pre-supposes that the Fuehrer Order was already in existence. This statement permits therefore only the deduction that Naumann's assertions as to the existence of the Fuehrer Order before his taking over of office are correct; for, if the existence of the Fuehrer Order before his taking over of office are correct; for, if the existence of the exeuction orders had not been assumed to be known by the subordinated units, the order in the question would have been altogether senseless. manner of execution. (Transcript p. 881 German, 870 English. In particular, he did not order the carrying out of executions by means of gas vans. The evidence obtained does not indicate that gas vans were used by Einsatzgruppe B for the purpose of executions. Naumann denied it, in the witness box, as well as at the time he gave his affidavit before the beginning of the trail (Doc.
Book III B, p. 1, Doc. No. 4150, Exh. 112). To be sure, he admitted the temporary presence of such vans in the territory of his Group. His statement that he had never requisitioned these vans, but that they were, in June 1942, put at his disposal by the Reich Main Security Office without his having anything to do with it, could not be refuted in any way. No witness testified, and no document showed that these gas vans were used for the intended purpose by units of the Einsatzgruppe B. Rather were these gas vans, as shown by the evidence, surrendered to other units after relatively short time (Transcript p. 825/26, 877/78 German, 818/19, 866 English.) Reports. If the Einsatzgruppe B had used gas vans reports would exist about it which the Prosecution would have introduced. for the vans because at the time of their arrival executions were hardly possible any more (Transcript p.877 German, p. 865, English.). This being the case, one cannot hold Naumann criminally responsible for the temporary presence of the vans in the territory of the Einsatzgruppe B. confronted the Defendant Naumann during cross-examination with Document NO 5444, Exh. 175. This deals with an incident on the estate of Wessokoje. This occurrence, however, is not a Count of the charge, and Naumann, therefore, could not be convicted of it, even if it were substantiated by proof. give any order to kill the 3 persons named in this document. (Transcript p. 883/884, 886/88 German, p. 872/73; 875/76 English.) proven guilty, because this document biolates, above all, several well founded rules of evidence which, under the principles of American procedural law, prejudice the admission of this document as evidence.
For the reasons I have stated above this violation of the rules governing the taking of evidence will have to be taken into consideration when examining the value of that evidence.
1.) The document is not complete. Only part of document has been submitted. But the documents must be submitted complete. Wharton Evidence in Criminal Cases, p. 666:)
2.) The authenticity of a document must be proved by a witness who is to be confronted with the defendant, and sworn in about where the document has been found, the Prosecution has not furnished that proof (Wharton, ibid, page 391)
3.) The very best means of evidence must be presented. In consequence, hearsay evidence is precluded. The document shows that Scharfuehrer Goebel got his information from Hauptsturmfuehrer Sachnaut. Thus, his statements are based upon information received by third persons, so that this is hearsay evidence.
4.) A person accused can only be convicted on the basis of a statement made under oath. (Whalton, ibid., p. 682.) To convict Naumann on the basis of this document would, therefore, be in contradiction to this main principle of evidnce.
Therefore, Naumann's assertion that he never gave an order for the killing of those people, may not be regarded as being refuted. In any case, there are well-founded doubts about the correctness of the facts stated in the document. These doubts have to be evaluated in favor of the defendant, according to the general principles governing the law of criminal procedure. such an order, because the persons allegedly killed were members of a German organization for the so-called operation "Zeppelin". This was an operation the members of which were to be employed by Office VI of the Reich Main Security Office together with the German Wehrmacht behind the Russian front.
Thus, Naumann had no power of command, no disciplinary power over the members of that operation. This is clearly shown also by the documents submitted by the Prosecution themselves. nor forwarded such orders to the units under his command, what matters is only the answer to the following questions: Did Naumann, before the executions were carried out, have any information about these measures? Did he have the power and the opportunity to prevent or to stop them? Did he fail to take action? presupposition for the basis of a penal responsibility on the part of Naumann.
As for question 3: to the carrying out of the individual executions, (Rec. p. 826, 834, German, p. 819, page 828 English.) Generally, it is true, Naumann knew, as he admits himself, that executions had been carried out by units of his Kommandos. Yet, he acquired this knowledge in all cases only through the reports of the Einsatz- and Sonderkommandos about the executions which had already been carried out. But he had no information beforehand about the individual executions. In this connection it must be taken into consideration that the Einsatz- and Sonderkommandos were to a large extent independent. (Rec. OHLENDORF, p. 694 /95, OTT p. 3804/05, NAUMANN 824, 869, 822, German, 818, 858, 815 English.) This independence with that the Kommando chiefs had received, previous to the Russian campaign, the Fuehrer order, and, to be precise, in the same way as the Einsatzgruppen Chiefs themselves. The meaning of this issuing the order to the Leaders of the Einsatzkommandos can only have been to authorize them to take action without special orders by the Einsatzgruppen chiefs. If this had not been so, the order would not have been given to the Kommandofuehrers, but it would rather have had to be given in each case first to the Einsatzgruppen Chiefs.
Since a special the individual execution was not necessary, no previous notification was, in consequence, necessary. Such, a procedure would, incidentally, have probably been much too cumbersome and impossible, considering the bad communications and transport conditions in the vast Russian area, the comparatively large territories of the individual Kommando areas, and the samll strength of personnel in the individual Kommandos. That the Einsatz- and Sonderkommandos were independent to a large extent, resulted, in particular from their proper task, namely, to secure the rear areas of the Army and to fight bands and partisans which might appear. (Rec. Naumann, p. 824, 835, 836 German, p. 816, 829, 830 Engl.) From this task there resulted the necessity of taking immediat action which was not allowed to suffer any delay by waiting for instructions from the Einsatzgruppen Chief.
to be carried out by units under his command on account of the order. But this general knowledge will hardly be deemed sufficient to give an affirmative answer to question 3,) But even if an affirmative answer were to be given to this question, the prerequisites would, in any event, be lacking for number 4 and 5.
A conviction would only be justified if the questions 3.), 4.) and 5.) were to be given affirmative answers, that is, all of them.
As to question 4: the execution of the orders issued by HITLER and forwarded by HIMMLER and HENDRICH, which had been given to the Einsatz-and Sonderkommandos before NAUMANN took over his position, and thus already existed, when he took over. execution of these orders? Could he be expected to issue instructions to the units under his command not to execute the Fuehrer order? This would have been impossible. But would he thereby really have prevented the execution of the order? Supposing that the units under his command had complied with NAUMANN's instructions, which is very doubtful, since NAUMANN could not cancel an order given by the Fuehrer, what would have happened? The only consequence would have been that NAUMANN would at once have been removed from his post and proceedings started against him for disobedience. But would he thereby have prevented the executions for the future? Certainly not. He would no doubt have been replaced by a successor, who would have shown the obedience required. Thus, NAUMANN would have achieved as little as if by feigning illness or other reasons he had succeeded in being relieved from his position. The Fuehrer order would have remained in existence and would have been carried out, even if NAUMANN had no longer been Chief of the Einsatzgruppe. Naumann's conduct would not have been able to change that. It would have been impossible to NAUMANN to prevent the execution of the Fuehrer order, and this is what only matters in this connection.
Thus NAUMANN cannot have had the power and the opportunity to prevent the execution of the Fuehrer order. executions carried out by the Einsatz and Sonderkommandos, he would surely have used then. In particular, he would never have given such orders himself, for the execution of these orders was not consistent with the spiritual attitude of NAUMANN (Rec. p. 866, German, 855/56, English.) Besides, he never concealed this attitude of his in conversations with the Leaders of Einsatz-and Sonderkommandos. This too has been clearly shown by the evidence. The witnesses OTT and STEIMLE, for instance, have testified that in conversations he had with them, Naumann expressed a mental repudiation (Rec, Steinle, p. 2073/75 2082, German, 2028-2030, 2036, English, Ott, p. 3779, 3832, German, p. 3717, 3770, English.) Still, on these occasions Naumann always remarked that he saw no way of evading the Fuehrer order.
As to question 5: opportunity to prevent the execution of the Fuehrer order or to stop it, there is no basis for a criminal responsibility on the part of NAUMANN. But even if this question were to be answered in the affirmative, a criminal responsibility on the part of NAUMANN would be non-existent, because to have omitted to prevent such a thing does not constitute quilt. It is true, that even an omission can constitute a punishable offense. This is a general principle, both in the German as well as in the American Jurisprudence and practice of law. But, according to those principles the omission can only constitute a punishable offense, when a legal obligation existed to take action. In this connection I refer to Wharton's opinion in his book "Criminal Law" of 1932.
In vol. I, p. 222, Wharton explained that an omission must be based on a violation of duties, in order to be a punishable offense. Omissions are, in his opinion, no basis for a criminal proceeding, unless they constitute a failure in the execution of an obligation which had specially been imposed on the accused. This obligation to act must, as is also generally recognized, be founded upon the law. As to the correctness of this opinion, I refer likewise to the fundamental explanations of Wharton in the book quoted above, where on page 226 he explains that a simple negligence to give assistance is no punishable offense, unless it happened in the course of acting against an obligation specially assumed or imposed. On page 255 of the aforementioned book he amplified that idea by declaring that the failure to give assistance could constitute a punishable offense only if and when this giving of assistance was a legal obligation. Such an obligation, however, did not exist on the part of Naumann. Naumann had such an obligation neither by law nor by agreement, On the contrary, the obligation that had been imposed upon him, was not to prevent the execution of the orders issued by Hitler. In so far his conduct cannot be called guilty. general principles of humanity, Naumann would have been unable to act because he was in a state of emergency which made it impossible to carry out the obligations. Such a condition of constraint, however, rules out any guilt, This is in accordance with the generally recognized principles of jurisprudence. May I, in this connection refer again to the conclusive explanations of Wharton in the aore-mentioned book I), where the author explains that the defense may oppose the Prosecution with the contention that the crime has been committed under constraint and force, out of fear of immediate death. Wharton assumes rightly that in such cases, nobody may be found guilty of a crime unless he had the intent and will to commit it.
is presupposed in these explanations. As has been said above, he would only have been able to prevent the executions for a short time through an order which he would have had to give in opposition to the existing order of Hitler, the then chief of state. Apart from the fact that that measure, as I have stated above, would not have had the slightest effect, it would have had the consequence that Naumann would have been prosecuted for serious insubordination. (Rec. Naumann, p. 820 German, p. 813, English) There can be no doubt about the result of such criminal proceedings in view of the severe penalties the SS- and Police Courts used to inflict. Not only Naumann, but practically all the defendants have testified on the witness stand that the death penalty would have been the inexorable penalty for that insubordination. (Rec. Ohlendorf, p. 750, Braune p. 3103/04, 3098, Naumann, p. 820 German, p. 813 Engl.) to refuse the execution of the orders. (Rec. Ohlendorf, p. 563-65, Braune p. 3110, Sandberger, 2206, Nosske, p. 3480, Klingelhoefer, p. 3959, Steimle, p. 2088/2203.) able to refuse execution of the Fuehrer order, this does not refute the statements made by the afore-mentioned persons; for what matters in each case are the particular circumstances of the individual case. such a state of emergency that no possibility was left to him to act in a way different from what he actually has done. through of the Fuehrer Order and that he himself did not give orders for executions. proven, a punishment because of this would be impossible since Naumann's behaviour would be due to an order issued by Hitler.
That this order did exist and that it existed during the whole period in which Naumann was Chief of the Einsatzgruppe B, cannot be doubted according to the results of the evidence presented. As regards this I particularly refer to the testimony of Ohlendorf (Records pages 533, 524) Blume (Records p. 1811), Nosske (p. 3503-05), who gave a detailed description of the way in which the Fuehrer Order was given to the commanders of the Einsatzgruppen and Einsatzkommandos in Pretsch. degree, the plea of acting on higher orders precludes punishment, it is first of all of decisive importance according to which law this objection is to be judged. Tribunal IV declared that it wasnot a tribunal of the USA and therefore did not have to apply American principles, but that it was an international tribunal and that therefore the facts were to be judged according to International Law. (Page 3 of the decision of 22 December 1947). I must suppose that this principle applies generally to the Military Tribunals here and that therefore in this trial the plea of acting on superior orders is to be judged according to the International Law in force at the time of the action. thusfar admissible in International Law. This result cannot be altered either by the London Charter or the Control Council Law No. 10. Charter and Control Council Law No. 10 therefore can only be applied inasmuch as they coincided with the hitherto recognized rules of International Law. No new International Law could, however, be created by the Charter and the Control Council Law No. 10 since individual states cannot establish International Law, but only the community of nations can do so. This is a generally recognized principle of International Law which took root in practice as well as in theory. For the correctness of this conception I particularly mention the statements of the Professor for International Law, Norman J. Padelford, who, in an article published in April 1938, commented upon the Washington Agreement of 1922 and thereby came to the conclusion that, in spite of the consensus of opinion of the five powers present at the Conference, these were not entitled to establish new rules of International Law.
1) International Law can only be created:
1. by international agreement and 2. by a conception of law which is generally recognized by all International Law.
This conception is clearly expressed in a decision quoted by Gobbett according to which, in order to prove the existence of a rule of International Law, it must be set forth that this has either found the express sanction by international agreement or that it must have grown to be a part of international Law by the frequent practical recognition of States, in their dealings with each other.2 2) Cobbett, Leading Cases on International Law, volume I, page 5:
"It was said that in order to prove an alleged rule of international law it must be shown "either to have received the express sanction of international agreement", or "it must have grown to a part of in their dealings with each other".(i)." 1) Norman J. Padelford, Prof.
of International Law, Fletcher School of Law and Diplomacy, in the periodical "The American Journal of International Law", year 1938, page 274:
"This conclusion was new rules of International Law.
...."
community of nations, according to which a plea of superior orders is impossible. Such an agreement was not signed thus far. Conference to come to an international agreement to the effect that the plea of superior orders shall be impossible in International Law. However, this agreement did not come about. The Washington Agreement was not ratified. Especially France declined to ratify this Agreement just because of the provision in it that the plea of superior orders should not be admissible. With regard to this I refer to an article by the French teacher of International Law, Raoul Genet, of 1938, according to which France had objected at that time that, for example, the commanders of submarines could not be held personally responsible for orders which they had received from their hierarchic superiors.1 orders as laid down in the Washington Agreement of 6 February 1922 was rejected. This is shown by the fact that commanders of German submarines of the first World War were cordially welcomed by their English comrades,whereby they were assured that they would not be held responsible for the execution of orders received from their Admiralty.2 256. 1) Raoul Genet, Directeur de la Revue internationale francaise du droit, "The charge of piracy in the Spanish civil war", page 256:
"During the negotiation of the treaty signed at Washington France (which, however, did not ratify) had contended that the commanders of sub they had received from their hierarchic superiors."
2) American Journal of International Law, 1938, page 256: "It may be that a plan of superior orders shall not be admissible.