Office interrupted him brusquely and told him that he would have to wait for further orders. through the Chief of Office I, once before. They had not considered his reasons valid. This was his third unsuccessful attempt in the last few years to leave the Security Police". for the final judging of Nosske. At that time Nosske was in charge of the State Police Office in Duesseldorf. In September 1944 he was ordered by the Higher SS and Police Officer Guttenberger to round up all Jews in Duesseldorf and in the entire territory of the Higher SS and Police Officer, as well as all Aryans connected with them, and to shoot them. thousand people. The propaganda was still proclaiming loudly that the Allies would be stopped at the Rhine. used.
Duesseldorf was still about 200 km from the front. It was actually still 7 months before the final victory of the Allies. the Higher SS and Police Officer. Germans, too, would be liquidated by this order, was surely the most practical point he could have made to the RSHA in order to have the order rescinded. it is basically a matter of innocent people, Jews as well as Germans, who had to be protected from an order similar to the Fuehrer Order.
the Higher SS and Police. Officer rescinded by the RSHA. Officer Guttenberger, who did not forgive him for preventing the order. military insubordination and failure to perform his duty and succeeded in having Nosske prosecuted, which was handled by the Investigation Officer Dr. Hausmann, of the SS and Police Court in Berlin. the Nosske Document No. 8, Exhibit No. 7. According to this affidavit the trial proceeding was initiated against Senior Government Councillor Gustav Adolf Nosske in the autumn of 1944 as the result of an official complaint of the Higher SS and Police Officer Guttenberger, as well as of Inspector of the Security Police, SS Colonel of the Police, Dr. Albath. brought against him. the real reason for this trial was his refusal to carry out an order of the Higher SS and Police Officer Guttenberger which demanded the execution of half Jews and their Aryan spouses. behaviour he understood and approved of. the RSHA, under any circumstances, and insisted that he must disappear.
In his affidavit Husmann says, in this respect:
"It was finally decided that Nosske would be removed from his position and dismissed from the Gestapo. He was to go to the front as a plain soldier. Charges were not to be dismissed, but only postponed until the end of the war, as was also done in other cases.
the Gestapo, to which he had belonged." witnesses from the State Police Office in Duesseldorf. day and gone the next, and did not even have a chance to turn over his tasks to his successor.
In Document Nosske How 10, Exhibit NO. 9, Dr. Hans Schmitz, who was Criminal Director of the State Police Office in Duesseldorf until the end of the war, states:
"Former Senior Government Councillor Nosske was my superior from autum 1943 until September 1944 as the Chief of the State Police Office in Duesseldorf. After the summer of 1944 I was, after Nosske, the senior official and in that capacity I state that at the end of September 1944, Nosske was dismissed from his position as Chief of the State Police Office by a decree of Kaltenbrunner.
Nosske left the Security Police and the SD. He had to turn in his official pass and his SS uniform at the office. military service. In October 1944 Nosske became a soldier." this point, I find that there is no conclusive proof that Nosske carried out the Fuehrer Order in Russia. Einsatzkommando 12 carried out under orders from Nosske, which were based on existing laws of warfare rather than the Fuehrer Order, were fundamentally illegal. It has presented only one document against Nosske which, if you accept the interpretation the Prosecution gives this document, contains a violation of the laws of warfare over and beyond the Fuehrer Order. of Russian parachutists.
tion. incident, because he had turned over Einsatzkommando 12 to another officer and himself was in the hospital. refusal in September 1944, saved, before the end of the war, thousands of innocent people from being killed. Police and SD in October 1944. declared to be criminal, according to the verdict of the IMT in Nuernberg. claims is not present. from all the circumstances I have brought up, will be decided by the Tribunal.
DR. HOFFMANN: Your Honor, may I briefly quote from the German text, that is, the transcript of the 9th of December, page 1732, and this is the question of the presiding judge. I quote:
"All right, then you would have carried out the order in case you had found any Jews?" Nosske answers, I quote:
"If I had received the order and if I had found any other way, or if I had not been able to evade the order in any other way, that is to say, if the final consequence would have been, namely, to be shot myself, then I would have carried out this order."
PRESIDENT: There is nothing in what you have read which would suggest that I had asked what he would do in the event the alternative was death, as you stated in your summation.
DR. HOFFMANN: Very well, Your Honor, but may I then have you interpret the final plea in such a manner that Nosske in such a hypothetical case gave this answer to which I refer in my final plea, even if he didn't understand your question, Your Honor?
PRESIDENT: The only point that I made, Dr. Hoffmann, was that you said on page 6:
"Judge Musmanno asked the defendant, Nosske, what would have happened if he had been restricted in his freedom of decision to the extent as to be placed before the direct alternative of shooting, for example, 500 Jews on the spot, or to be himself in case of a refusal?" I never put such a question to him. That is the point I wanted to clear up.
DR. HOFFMANN: Your Honor, I admit that you didn't pose this question. In this respect, my interpretation is wrong.
PRESIDENT: Very well. Dr. Lummert.
DR. LUMMERT: Lummert for the defendant, Blume. With Your Honor's permission, I would like to read my final speech in the English language.
PRESIDENT: Very well, Dr. Lummert.
May it please the Tribunal:
1.) In my opening statement I announced that in my final plea I intend to deal in particular with the legal question of the so-called "unexpectability" ("Unzumutbarkeit") This is in accordance with an agreement of defense counsel in case No. 9 by virtue of which certain questions which are of importance to all defendants or to some of them are to be treated in detail by different defense counsel in order to save time and to avoid unnecessary repetitions.
Among these general themes are e.g. the special conditions in the East, the question of necessity caused by the order of a superior, the questions of general necessity and presumed or putative necessity and - as to my contribution - the question of "unexpectability". I am going to deal with this question in the first part of my final plea before discussing the conduct of the defendant Blume and the special questions of his guilt or innocence.
What is the meaning of "unexpectability" under penal law? We are concerned here with an excuse for the individual perpetrator who failed to comply with a duty imposed upon him by order or prohibition. This duty - also existed for this particular offender, but the special circumstances however have the effect that he can not be held responsible for the fiolation of this duty. This doctrine of "unexpectability" has been developed by jurisprudence and administration of justice in German Criminal Law during the years 1920 - 1933 in particular.
The English language has no word for "Unzumutbarkeit". The meaning of this term is: that a person cannot be expected to act in a certain way i.e. according to the standards of criminal law, if the accompanying circumstances of the case are considered fairly and reasonably. As a brief translation for "Unzumutbarkeit" in this plea I suggest and use the term "unexpectability".
"Unexpectability" under German Criminal Law is no (objective) justification, but a (subjective) excuse. The distinction between the objective and subjective viewpoints of the act as know under German Penal Law, it is true, have been accepted in the Nuernberg trials during the past two years, however it is alien to the conceptions of AngloAmerican Penal Law. I therefore want to emphasize that the idea of "unexpectability" need not be limited to the subjective viewpoint of the act in the German sense, "Unexpectability" concerns much rather the borderline area of the effectiveness of the standards of criminal law, and the results under penal law are the same, no matter whether a criminal law was no longer binding for the perpetrator on account of the prevailing circumstances of the case, or whether the perpetrator acted in violation of the laws but has been excused on account of the circumstances prevailing in this case. In neither case can he be punished. Considered from this point of view "unexpectability" is the basic legal principle which is fundamental to all special statutory provisions of the individual States concerning self-defense, excessive self-defense, state of necessity, presumed or putative necessity, provocation, collision of duties, necessity arising from an order etc.
, but which is not entirely covered by them. "Unexpectability" is a general reason outside the Statute Law, under which punishment of the perpetrator does not seem justified and is therefore excluded. and quotations from judgmentments and scholarly works in document Blume No. 30. I should like to refer to this. It is of special importance that the International Military Tribunal in its judgment recognized the basic idea of "unexpectability" in discussing the necessity arising from an order, as was done in the following classic brief form:
"The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." The IMT also used this basic principle in judging the organizations charged with being criminal. There, it excluded from "criminal groups" those "who were drafted into membership by the State in such a way as.
to give them no choice in the matter." This same basic principle prevails in Judge Musmanno's concurring opinion on the conviction of Fieldmarshal Milch where he says:
"We never intended, nor was it suggested, that he should take any action which would result in the forfeiture of his life." The same idea can be found in the judgment of the Military Tribunal No. IV in the case against Flick and others (case No. 5); it considers the mere employment of foreign slave labour by industrialists excused by the conditions prevailing in Germany at that time, in particular by the demand of the State. The court arrived at this conclusion through an extensive interpretation of the term "necessity". May I refer here also to the excerpts from the standard Americah work, Wharton's Criminal Law, contained in Document Blume No. 30. The quotations contained in this document also refer to other foreign laws.
Thus in Austria Article 2g of the Austrian Penal Code of 1852 makes possible a consideration of the basic idea of "unexpectability", in France it is the broad interpretation of the conception of the contrainte morale, in Italy it is the distinction between imputabilita' and responsibilita' and the interpretation of this latter concept. Under Roman Law we finally find the general legal principle of "nemo ultra posse obligatur". principle of "unexpectability", because this is a general principle "which the Judge is bound to observe", as Prof. Kraus, Membre de l'Institut du Droit International, states in his comments on Control Council Law No. 10.
2.) what are the conclusions to be drawn from the concept of "unexpectability" for this trial? The defendants are charged with murder of mass-murder. Who ever is familiar with the history of the war crimes trials - beginning with the speeches and warnings by President Roosevelt from 1941 on through the Moscow declaration to the London Four Power Agreement and Control Council Law No. 10 - knows that first of all there were two main groups of crimes which caused a humanitarian reaction on the part of the public of the World, in particular of the United States of America, namely the mass-extermination of Jews in concentration camps, which is inconceivable to every human being with any moral sense, and second, beginning already at an earlier date, the liquidations of human beings by the Einsatzgruppen in the Last from the middle of 1941 on. It was to these two groups of crimes, to which Justice Jackson's words referred in his report to President Truman dated 7 June 1945:
"We propose to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code." Justice Jackson might have as well quoted the fifth commandment which reads: "Thou shalt not kill."
The following question arises out of the idea of "unexpectability": Could the defendants, under the particular circumstances prevailing in 1941, be expected ("zugemutet") to act differently? the "special circumstances" under which the defendants acted in the manner of 1941 and the following months. a complete picture of the historical, political, military, and other special conditions prevailing at that time. In the following I have to limit myself to showing a few facts of particular importance. was a S t a t e that ordered these exterminations of human beings.
Who are they, strictly speaking, these so-called States? I do not intend to deliver here a legal or philosophical lecture on the "State", I only mention the fact that to this day the States are without any doubt the highest ranking forms of organized society and still are at the same time the supreme legislators. They did and still do claim so-called sovereignty for themselves. This concept of sovereignty developed after the end of the Middle Ages together with the formation of actually and legally independent States. It is the essence of this concept that the aims of the State take precedence over all other human aims, that therefore the concept of the State ranks above the concept of mankind, and that the States are the masters of International Law as well and not vice-versa, Macchiavelli, as is well known, expressed this supremacy of the State in the concept of ragione di state, the raison d'Etat. The Frenchman Bodin coined the expression of "puissance souveraine", "summa potestas" for this supreme power of command of the State. To express the same thought, Hegel, the philosopher, chose the words that the State was "the absolute power on Earth". Since the old idea of a general right of nature had been abandoned, international law could only come into existence by voluntary obligation of the States through "inter" national treaties or by customary law which was voluntarily recognized by the States.
COURT NO. II, CASE NO. IX.
was generally recognized throughout the world until 1914 and that it was effected only by the catastrophe of the first World war. It is not new to the Tribunal if I mention that those who promoted and represented the new concept of a worldwide law, ware and are, above all, US statesmen. At the beginning of this development to find the famous message of President Wilson to the Senate of 22 January 1917 where says:6) "Mere agreements may not make peace-secure.
It it.
If the peace presently to be made is to en ganized major force of mankind."
This organized mankind was the purpose of the 27 points laid down by President Wilson in his four speeches in 1918 which were accepted by all signatory Nations as the basis for the armistice of November 1919. The crucial point was that in the future international law should take precedence over the law of the individual States. This was most clearly expressed in the Mount-Vernon Speech of 4 July 1918 where President Wilson said: 7) "These great objects can be out into a single sentence.
That we seek is the reign of law, tained by the organized opinion of mankind."
It is well known that the idea of the precedence of international law over national law remained in force only for a few months. During the negotiations at Versailles 6) Congressional Record, 64 Congress, 2nd Session, vol.
54, No. 35 p. 1947. 7) Cf. H.W.V. Temperley, a history of the Peace Conference of Paris, vol.
I, London, 1920, p. 132.
the old concept of sovereignty and the egoism of the individual States prevailed again and were embodied anew in the Charter of the League of Nations of 1919. President Wilson's program, however, remained for the most cart unrealized. tive security was created within the framework of the League of Nations. It was to be supported by the Briand-Kellogg Agreement of August 1938, To how great an extent, however, the sovereign States actually remained the masters of international law even at that time, can be seen from the note of Secretary of State Kellogg dated 25 June 1938 to all negotiating States where if says:8 "...The right of self-defense ... is inherent in treaty.
Every nation ... alone is competent to to war in self-defense."
And not later than at the outbreak of the war between Italy and Abyssinia in 1935 did the system of collective security break down completely. 8) During the second World War the individual States were more than ever before the absolutely highest plenomena on earth. tion at this point already that unfortunately a development similar to that after 1018 can be recognized now, after the end of the second World War. For even the Charter of the United Nations leaves the sovereignty of the individual States untouched, The recognition of the right of Veto is a direct consequence thereof. the attitude of the Union of the Socialist Soviet Republics. 8) Cf. the Final Plea of Prof. Jahrreiss before the The so-called Bolshevism, it is true, certainly aims at a world state, as the dictatorship of the proletariat of the earth, organized in a Union of all States as Soviet Republics.
But as long as every State in the world did not experience a revolution in this sense, those States in which the dictatorship of the prolotariat has been established can by no means subordinate themselves to a community under international law in which the BourgeoisStates would hold the majority. It is just in order not to endanger the world dictatorship of the proletariat that the Soviet Republics thus far established have to preserve their sovereignty strictly curing this "transition-period" as a basis for the further world revolutionary struggle. This is the urgent reason why they cannot do without the right of Veto. parallel can be found between 1919 and the period since 1945. During the Paris negotiations of 1919 it became apparent that the victorious powers, in contrast to the program of President Wilson were not ready to abandon the sovereignty and the egoism of their own nations. For Germany the terms of peace meant a violation of the principles laid down in the armistice and a dictate forced upon her, they were the expression of the unrestricted raison d'Etat of the victorious States. Like all sovereign States they came to conclude their right from their power. In a similar way there exists an undoniable contradiction at the present time: On the one hand, according to the Nuernberg Judgment and Control Council Law Mo. 10, the principles of the Hague Convention on Land-Warfare and the Geneva Prisoner of War Convention are alleged to be generally valid international law, for the violation of which even German individual persons are indicted and convicted, and on the other hand the four occupation powers do not observe the limitations imposed by these legal regulations of the Hague Convention on Land-Warfare and the Geneva Convention in their attitude towards occupied Germany.
The two most important examples in this respect are the forcible eviction of about 15 million Germans from Eastern Germany and German Bohemia which had been their German homeland for about a thousand years, and the retention of German Prisoners of War which is contrary to international law. for the victory of "inter"-national law or much better "super" national law over the concept of the raison d'Etat has not yet come. in that statement of the Nuernberg Judgment which is the most important one and at the same time the most difficult one to carry out, said:9) "On the other hand the very essence of the Charter dience imposed by the individual State."
It is obvious that this sentence in reality anticipates the facts and the basic law of a future World State. It is true that Justice Jackson said in his speech before the University of Buffalo in October 1946:10) "At all events, whether they be regarded as a codi teen others.
They are now embodied in the tri bunal's judgment.
That these rules of law apply without dissent at Nuernberg."
9) Official Edition, vol. I, p. 223. 10) Quoted from "New Yord Herald Tribune" of October 6, 1946.
But opposed to that, the Charter of the United Nations only provides for col ective responsibility of the States as such for violations of the Charter; that is to say, the State responsible for the violation is called to account, not the individual concerned. And the General Assembly of the United Nations in its resolution of 11 December 1946 only took note of these new principles, affirmed them and turned them over to a committee for further action.11) The Charter of the United Nations was, however, not amended accordingly. In reality, therefore, there is no State on earth which at this time recognizes the precedence of international law over national law, for all of them are soveriegn. Nor is there any organized supernational power able to protect the individual who finds himself in a position where his national duties of obedience clash with his international duties. 11) This resolution runs as follows: paragraph 1, subparagraph a, of the Charter, to initiate studies and make recommendations for the purposes of encouraging the progressive development of international law and its codification; and of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis signed in London on August 8, 1945, and of the Charter annexed thereto, and of the fact that similar principles had been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on January 19, 1946. nized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal; national law established by the resolution of the General Assembly of December, 1946, to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal in the judgment of the Tribunal (Journal of the General Assembly, No. 75, p. 945). (Quoted from "The International Law Quaterly", Vol I, p. 170.)
DR. LUMMERT: I beg your pardon, Your Honor, it has been forgotten to underline these two sentences. I think them to be important - the view point of wanting protection can be decisive. give preference to the international duties would be ruthlessly punished e.g. for military disobedience or hightreason or treason. Mankind is not organized at all; as before it is still divided in the populations of the different States, the so-called Nations, and the individual citizen of such a State - almost like a piece of cattle is treated like part and parcel of his State and has to take a collectivistic part in the fate of his State. d'Etat is of such fundamental importance because they constitute the principle by reason of which actions, which when normally committed by private individuals would constitute murder, arson, robbery, extortion or property damage, are not considered as such if a State committed them. The moral standard, to be applied to the State differs from that of the individual. This concept has thus far been, accepted throughout the world. In every war, no matter how far back we go, innumerable human beings had to lose their lives on either side of the belligerents. But killing within the framework of military measures is not considered murder. It is generally agreed that the leaders of States and Supreme Military Commanders have to observe the rules of international law and the laws of warfare as recognized by all civilized nations. They may be held personally responsible for violations according to the new principles asset forth in the London Agreement dated 8 August 1945 and the Charter of the IMT which were to be included as valid international law in the Charter of the United Nations, but which unfortunately have not been inclouded to this day.
But which penal provisions are applicable to the individual soldiers and officers in the case that the supreme national and military leadership issues orders in violation of international law and law of warfare? This question constitutes one of the main problems in this trial.
Considered from the viewpoint of "unexpectability" the question is as follows. Could the defendant be "expected" independently to examine the order they received from the sovereign Chief of State as to whether it was in compliance with or in violation of international law and if the latter should be case to refuse to carry out the order and to take all consequences upon themselves; up to the forfeiture of their own lives, even though there was no international authority to protect them? and even more so, if the further special circumstances are taken into consideration which I am going to discuss in a minute. lowing: pangs of the new World State. Hitler issued that cruel Fuehrer-order in the middle of 1941 to assure Germany's victory over Bolshevism, i.e. he issued it under the concept of the raison d'Etat, a concept which caused Friedrich Nietzsche, the philosopher, to coin the phrase that the State is the "coldest of all cold monsters." We have to bow in deep sympathy to the unfortunate victims of this order in the East from middle of 1941 onwards which was a result of the concept of the raison d'Etat.
But these defendants here, too, are victims of that concept, Because it is their personal tragedy that fate caused them to become members of these Einsatzgruppen.
b) Secondly I should like to direct the Tribunal's attention to a viewpoint which is rather remote to AngloAmerican thinking but which is worth mentioning for an understanding of the defendant's general attitude. It is the concept of legitimacy and state discipline which was developed above all in Germany. It is easy to explain this viewpoint to a Frenchman, for example, because the same attitude is observed in France though not to the same extent as in Germany. But it is really difficult to explain this mentality to an Anglo-American because as a rule he is not able to understand it and considers it to be absurb. Mr. Winston Churchill dealt with this continental line of thought in his wellknown second secret speech before the House of Commons on 10 December 1942, a few weeks after the Allied landing in North Africa, in answer to the protests raised against the Allied cooperation with Admiral Darlan. I should like to quote from this speech of Mr. Churchill's as follows:12) "I now turn to examine a peculiar form of French men which has overtaken their country.
I am not at all tality.
But it would be very foolish not to try to understand what is passing in other people's minds they respond.
The Almighty in His infinite wisdom Englishmen.
In a state like France which has ex12) Quoted from "Life", Overseas Edition, Vol. 20, No.
5, p. 34.
"of many French officers and officials in times of revolution and change.
It is a highly legalistic sheer anarchy.
For instance, any officer who obeys tions.
From this point of view many Frenchmen who of Verdun and the sole hope of France.
Now all this may seem very absurd to our minds.
But there is one aspect about it which is important to us.
..." It is interesting to hear what a Frenchman has to say about the Germans. Professor Donnedieu de Vabres who was the French judge on the IMT said in a speech delivered in March 1947 before the Association des Etudes Internationales and the Association des Etudes Criminalogiques on the first Nuernberg Trial13) "Defense counsel understood that well.
They have been berty for propaganda purposes.
On the contrary I am of gree, conducted themselves as correct aids to justice," Here a Frenchman who, according to Mr. Churchill, in this connection is almost suspected of being absurd confirms the fact that this discipline has been developed to a particularly high degree in Germany.
No matter whether this fact merits irony or admiration or criticism to the effect that it is absurd, this high degree of discipline must not be disregarded in passing a just judgment on the happenings in Germany under the so-called Third Reich. Moreover, this discipline has historical reasons. In contrast to England which is protected by nature through the sea or to the USA which never in their history have been the objective of a foreign invasion Germany's borders are unprotected all around and she has experienced numerous invasions from the West, North, South-East and East. Since, according to Macchiavelli's wisdom whose opinion was recognized during the past centuries, the neighboring State was the natural enemy and only the neighbor's neighbor a friend, it was a consequence of natural conditions that Germany in the interest of self-preservation had to organize herself in a disciplined way, and Prussia took the leading part in this organization during the past 250 years. The limited economic possibilities of Germany furthered 13) -"Le proces do Nuremberg". - Original text of the quotation.
"Les avocats de la defense l'ontbien compris. Certains lour ont re proche d'avoir abuse do leur liberte pour faire do la propagande.
J'estime, au contraire, et c'est aussi, je crois, la pensee du Tri auxiliaires corrects do la justice."
the tense organizing additionally. All this influenced the German mentality. The Christian Churches supported the State in this development, above all by the quotation from the Bible that Each man should render obedience to his master who has power over him. Expressed briefly, the German people is obedient to the State and to orders.
If any mere proof is needed to corroborate the German people's particular public discipline this proof can be found in the incredibly small percentage of acts directed against the occupation powers. The German people subordinates itself in a matter of fact way to the military dictatorship which succeeded the brown dictatorship. sharp distinction between public law and private law as we find it in Germany and as it is not known in Anglo-American legal doctrine. Furthermore, it must be mentioned here that in German Law acts of State officials are not to be evaluated as acts done by these individuals but as acts of the State only. lation as provided by the Weimar Constitution of 1919 was no longer able after 1930, to meet the difficult economic and political situation in Germany. Several years before the so-called seizure of power of 30 January 1933 the Government in Germany used a dictatorship, based upon Article 48 of the Weimar Constitution. Hitler's Government was nothing but a continuation, though a stricter one, of the method of governing already previously adopted. cipline which was brought about by the increased penalties for violations of the duty of obedience during the war. In this connection I should like to refer to documents Blume Nos. 1 - 3.14) 14) - Cf. Transcript pp. 1766 and 1853 - 1857.