Whoever takes the patho-ideological interpretation seriously is therefore confronted by the uneasy outcome that the only remaining yardstick left for passing judgment on the Nazi killers is the one we normally reserve for the mentally ill and insane. If the criminal acts of such unfortunates result from their mental deficiency we do not consider them subjectively guilty and therefore do not punish them, but instead refer them to an asylum for appropriate care and treatment. Paradoxically then, the application of the patho-ideological perspective to the collaborators of Hitler’s genocide inevitably results in the excuse of their conduct, as one simply cannot diagnose the patient as mentally deficient and then call him to account for the actions caused by his handicap. In such a scenario individual guilt and criminal responsibility disappear behind the horizon of mental derangement and the Nazi genocide itself is reduced to an error of judgment with the gas chambers as the absolute low point of its catastrophic consequences. According to this kind of logic, the mass murders are indeed turned into a self-defense strategy of the Third Reich, which may not have had any basis in reality, but which, in the final analysis, becomes understandable – and even excusable – because of the failing mental capabilities of those who carried them out.
Such considerations may well have played a part in Von dem Bach’s statement before the IMT, and, as we shall see, they initially determined the defense of some of his former SS colleagues.20 But there can be no doubt that they are not the intention of the advocates of the patho-ideological interpretation of the perpetrators’ conduct. And yet, they form its logical outcome. Thus we arrive at the bizarre situation in which the very same arguments applied by the Nuremberg defense counsel to exonerate their clients were subsequently adopted by their ‘historical prosecutors’ to emphasize the exact opposite.
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The idea that the behavior of the Nazi killers could somehow be explained by a perverted form of ‘subjective self-defense’, based on erroneous ideological assumptions – the very heart of the patho-ideological interpretation –, was already thoroughly dealt and dispensed with shortly after the war. The clearest demonstration of its inadequacy took place in the Nuremberg court room during one of the so-called follow-up trials by the Americans. It concerned the Einsatzgruppen-trial in 1947/48, in which this particular scenario of self-defense played a significant role.21 On trial were a number of commanding officers of the mobile annihilation units of the SS – the Einsatzgruppen –, who had carried out mass killing operations in Eastern Europe and the Soviet territories. Because of the overwhelming evidence none of the defendants seriously denied his objective participation in these killings. Disagreement, however, arose over their subjective involvement. Thus, their defense counsel sought to convince the judges that their clients had actually committed their crimes in good faith. While recognizing that in reality their victims had constituted no threat at all to either themselves or the German Reich, they maintained that the defendants had nevertheless genuinely believed in the existence of such a threat at the time and had acted accordingly. Clearly, in hindsight, they were proved wrong, but considering the circumstances they could hardly be blamed for this ‘judgmental error’. In the words of the prominent legal expert, Professor Reinhart Maurach, this defense reads as follows:
The defendants, according to the National Socialist theory as well as due to their own conception and experience, were obsessed with a psychological delusion based on a fallacious idea concerning the identity of the aims of Bolshevism and the political role of Jewry in Eastern Europe. This conception was apt not only to exclude the possibility of a discussion regarding the moral defensibility of the liquidation order but to bring the defendants to the conviction that the attack against the future existence of the German Reich and people was to be expected mainly from the Jewish population in the occupied Russian territories.
Based on these arguments, leading defense counsel Dr. Rudolf Aschenauer insisted that the defendants had committed their criminal acts ‘in presumed self-defense on behalf of a third party’, and ‘under conditions of presumed necessity to act for the rescue of a third party from immediate, otherwise unavoidable danger.’ The ‘third party’ here was, of course, made up of the ←27 | 28→German Reich and its people, whose very existence was supposedly endangered by Eastern European Jewry. And, as Aschenauer continued, ‘if the existence of the state or of the nation is directly threatened, then any citizen … may act for their protection.’ That the menace did not really exist hardly mattered as far as the judgment on the defendants was concerned, for ‘An error concerning the prerequisites of self-defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes … a legal excuse or – at the very least – a mitigating circumstance.’
The striking parallel between this line of defense by Aschenauer and his colleagues on the one hand, and the patho-ideological perspective of historians such as Dawidowicz and Goldhagen on the other, can hardly escape anyone. And the resemblance is even more remarkable when one realizes that the intentions behind both positions are diametrically opposed to one another. Thus, although the arguments used to explain the behavior of the perpetrators are identical, the Nuremberg defense counsel used them to emphasize the innocence of their clients, whereas the historians apply them to underline the exact opposite. As far as logical consistency is concerned, the latter are obviously no match for the lawyers, but this did not benefit their clients much.
In what was a surprisingly humorous rejoinder, given the subject matter under consideration, presiding judge Michael A. Musmanno reduced the subjective self-defense argument to the obvious nonsense it was:
Under this state of law a citizen of Abyssinia could proceed to Norway and there kill a Norwegian on the basis that he, the Abyssinian, was motivated only by the desire to protect his country from an assumed aggression by the Norwegian.
And that is not all – ….
Thus, if the Abyssinian mentioned above, invaded Norway out of assumed necessity to protect his nation’s interest, but it developed later that he killed the wrong person, he would be absolved because he had simply made a mistake.
That Musmanno and his fellow judges had little sympathy with such sophistry was made crystal-clear in their conclusion:
The annihilation of the Jews had nothing to do with the defence of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defence, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to ←28 | 29→Germany, a menace which called for their liquidation in self-defence, is untenable as being opposed to all facts, all logic and all law.22
The very idea that the defendants – all of sound mind and in possession of a level of intelligence and education considerably above average – had committed their crimes because they had genuinely believed in such a factual, logical and legal absurdity, was simply too grotesque