The Defense of Superior Orders

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The Defense of Superior Orders

Post by David Thompson » 22 Aug 2007 15:36

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

The first defense in this project is the doctine of superior orders. Here is the discussion of the issue from the jugment in the Einsatzgruppen trial. The full text of the judgment can be seen at:

Superior Orders

Those of the defendants who admit participation in the mass killings which are the subject of this trial, plead that they were under military orders and, therefore, had no will of their own. As intent is a basic prerequisite to responsibility for crime, they argue that they are innocent of criminality since they performed the admitted executions under duress, that is to say, superior orders. The defendants formed part of a military organization and were, therefore, subject to the rules which govern soldiers. It is axiomatic that a military man's first duty is to obey. If the defendants were soldiers and as soldiers responded to the command of their superiors to kill certain people, how can they be held guilty of crime? This is the question posed by the defendants. The answer is not a difficult one.

The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery. It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do. A very simple illustration will show to what absurd extreme such a theory could be carried. If every military person were required, regardless of the nature of the command, to obey unconditionally, a sergeant could order the corporal to shoot the lieutenant, the lieutenant could order the sergeant to shoot the captain, the captain could order the lieutenant to shoot the colonel, and in each instance the executioner would be absolved of blame. The mere statement of such a proposition is its own commentary. The fact that a soldier may not, without incurring unfavorable consequences, refuse to drill, salute, exercise, reconnoiter, and even go into battle, does not mean that he must fulfill every demand put to him. In the first place, an order to require obedience must relate to military duty. An officer may not demand of a soldier, for instance, that he steal for him. And what the superior officer may not militarily demand of his subordinate, the subordinate is not required to do. Even if the order refers to a military subject it must be one which the superior is authorized, under the circumstances, to give.

The subordinate is bound only to obey the lawful orders of his superior and if he accepts a criminal order and executes it with a malice of his own, he may not plead superior orders in mitigation of his offense. If the nature of the ordered act is manifestly beyond the scope of the superior's authority, the subordinate may not plead ignorance to the criminality of the order. If one claims duress in the execution of an illegal order it must be shown that the harm caused by obeying the illegal order is not disproportionally greater than the harm which would result from not obeying the illegal order. It would not be an adequate excuse, for example, if a subordinate, under orders, killed a person known to be innocent, because by not obeying it he himself would risk a few days of confinement. Nor if one acts under duress, may he, without culpability, commit the illegal act once the duress ceases.

The International Military Tribunal, in speaking of the principle to be applied in the interpretation of criminal superior orders, declared that:

"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 Prussian Military Code, as far back as 1845, recognized this principle of moral choice when it stated that a subordinate would be punished if, in the execution of an order, he went beyond its scope or if he executed an order knowing that it "related to an act which obviously aimed at a crime".

This provision was copied into the Military Penal Code of the Kingdom of Saxony in 1867, and of Baden in 1870. Continuing and even extending the doctrine of conditional obedience, the Bavarian Military Penal Code of 1869 went so far as to establish the responsibility of the subordinate as the rule, and his irresponsibility as the exception.

The Military Penal Code of the Austro-Hungarian Monarchy of 1855 provided:

Article 158. "A subordinate who does not carry out an order is not guilty of a violation of his duty of subordination if (a) the order is obviously contrary to loyalty due to the Prince of the Land; (b) if the order pertains to an act or omission in which evidently a crime or an offense is to be recognized."

In 1872 Bismarck attempted to delimit subordinate responsibility by legislation, but the Reichstag rejected his proposal and instead adopted the following as Article 47 of the German Military Penal Code:

Article 47. "If through the execution of an order pertaining to the service, a penal law is violated, then the superior giving the order is alone responsible. However, the obeying subordinate shall be punished as accomplice (1) if he went beyond the order given to him, or (2) if he knew that the order of the superior concerned an act which aimed at a civil or military crime or offense."

This law was never changed, except to broaden its scope by changing the word "civil" to "general", and as late as 1940 one of the leading commentators of the Nazi period, Professor Schwinge wrote:

"Hence, in military life, just as in other fields, the principle of absolute, i.e., blind obedience, does not exist."

Yet, one of the most generally quoted statements on this subject is that a German soldier must obey orders though the heavens fall. The statement has become legendary. The facts prove that it is a myth.

When defendant Seibert was on the stand, his attorney asked him:

"Witness, do you remember a proverb said by a German Kaiser concerning the carrying out of orders by soldiers?"

And the defendant replied:

"I do not know whether it was William I or William II, but certainly one Kaiser emperor used the expression, 'If the military situation or the entire situation makes it necessary a soldier has to carry out an order, even if he has to shoot his own parents'."

The defendant was then asked whether, in the event he received such an order, he would execute it. To the surprise of everybody he replied that he did not know. He declined to answer until he should have time to consider the problem. The Tribunal allowed him until the next morning to deliberate, and then the following ensued:

"Q. Now, if in accordance with this declaration by the Chief of State of the German empire at the time, the military situation made it necessary for you--after receiving an order--to shoot your own parents, would you do so?

"A. I would not do so.

"Q. Then there are some orders which are issued by the Chief of State which may be disobeyed?

"A. I did not regard this as an order by the Chief of State but as a symbolic example towards the whole soldiery how far obedience had to go, but never actually asking a son to shoot his own parents. I imagine it only as follows, your Honor: if I am an artillery officer in the war and I have to fire at a very important sector, which is decisive for the whole military situation and I received the order to fire at a certain village and I know that in this village my parents are living, then I would have to shoot at this village. This is the only way in which I can imagine this order, but never--it is inhuman--to ask a son to shoot his parents.

"Q. So, therefore, if you received such an order coming down the line, you would disincline to obey it? You would not obey it?

"A. I would not have obeyed such an order.

"Q. Suppose the order came down for you to shoot the parents of someone else, let us say, a Jew and his wife. And in your view you saw the children of these parents. Now it is established beyond any doubt that this Jewish father and Jewish mother have not committed any crime--absolutely guiltless, blemishless. The only thing that is established is that they are Jews. And you have this order coming down the line to shoot them. The children are standing by and they implore you not to shoot their parents. Would you shoot the parents?

"A. I would not shoot these parents."
Then, in summing up, the witness was asked:

"And, therefore, as a German officer, you now tell the Tribunal that if an order were submitted to you, coming down the line militarily to execute two innocent parents only because they were Jews, you would refuse to obey that order?"

And the answer was:

"I answered your example affirmatively, I said 'Yes, I could not have obeyed'."

Although defense counsel's query intended to establish the utter helplessness of a German soldier in the face of a superior command, the inquiry finally resulted in the defendant's declaring that he would not only ignore the order of the supreme war lord to shoot his own parents, but also to shoot anybody else's parents. He thus demonstrated that under his own interpretation of German Military Law, he did have some choice in the matter of obeying superior orders. Why then did he participate in the execution of the parents of other people? Why did other defendants do the same if they had a choice, as the defendant Seibert indicated?

Superior Orders Defense Must Establish Ignorance of Illegality

To plead superior orders one must show an excusable ignorance of their illegality. The sailor who voluntarily ships on a pirate craft may not be heard to answer that he was ignorant of the probability he would be called upon to help in the robbing and sinking of other vessels. He who willingly joins an illegal enterprise is charged with the natural development of that unlawful undertaking. What SS man could say that he was unaware of the attitude of Hitler toward Jewry?

As early as 24 February 1920, the National Socialist Party announced in its 25-point program, which was never changed, its opposition to Jews and declared that a Jew could never be an equal citizen. "Mein Kampf" was dedicated to what may be called the "Master Race" theory, the doctrine of Aryan superiority over all other races. When the Nazis seized power in 1933, persecution of the Jews became an official state policy. Then in September 1935 came the well known Nuernberg Laws which among other things deprived the Jews of German citizenship.

"Mein Kampf" was not a private publication. Its brazen voice rang through Germany. One passage was proclaimed over and over:

"The soil on which we now live was not a gift bestowed by Heaven on our forefathers. They had to conquer it by risking their lives. So also in the future, our people will not obtain territory, and therewith the means of existence, as a favor from any people, but will have to win it by the power of a triumphant sword."

The Nazi Party dinned into the ears of the world its odium for the Jews. "Der Stuermer" and other publications spread the verbal poison of race hatred. Nazi leaders everywhere vilified the Jews, holding them up to public ridicule and contempt. In November 1938 an SS inspired and organized hoodlumism fell upon the Jews of Germany. Synagogues were destroyed, prominent Jews were arrested and imprisoned, a collective fine of one billion marks was imposed, ghettos were established, and now the Jews were compelled on orders of the security police to wear a yellow star on their breast and back.

Did the defendants not know of these things? Could they express surprise when, after this unbroken and mounting program of violence, plans were formulated for the "final solution of the Jewish problem"?

Some of the defendants may say they never knew of the Nazi Party extermination program or, if they did, they were not in accord with the sentiments therein expressed. But again, a man who sails under the flag of skull and cross-bones cannot say that he never expected to fire a cannon against a merchantman. When Bach-Zelewski, SS general and many years member of the Party, was asked to explain the phenomenon of the Einsatzgruppen killings, he replied:

"I am of the opinion that when, for years, decades, the doctrine is preached that the Slav race is an inferior race, and Jews not even human, then such an outcome is inevitable."

The argument has, however, been advanced that the Fuehrer Order was not criminal. Although this proposition is at first blush opposed to all common sense, contrary to natural human reactions and out of harmony with the rudimentary law of cause and effect, yet it has been presented seriously by the defendants and in fact constitutes the major item of defense. Therefore, it cannot simply be dismissed as intolerable; reasons must be advanced as to why it is intolerable.

Let us suppose that the Fuehrer Order had proclaimed the killing of all grey-eyed people, regardless of age, sex, or position. So long as the iris of the eyes responded to those light rays in the spectrum which make up grey, the possessor of such eyes was destined for evil days. Character, occupation, and health could not influence nor could religion, politics, and nationality alter the predetermined doom. The farmer at his plow, the teacher at her desk, the doctor at the bedside, the preacher in his pulpit, the old woman at her knitting, the children playing in the yard, the cooing infant at the mother's breast--would all be condemned to death, if they saw the wondering world through the tell-tale grey eyes.

Let us glance at the unfoldment of such a program and look in on a family, whose members, because of that unfathomable selection of life's chemicals and inscrutable mixing in the mystic alembic of time, all have grey eyes. Suddenly comes a thunderous knocking and the door bursts open. Steel-helmeted troopers storm in and with automatic guns and drawn pistol order the dismayed occupants into the street.

We hear the screams of the children, we see the terror in the faces of mother and sister, the biting of lips of the helpless father and brother, the wild tramping of the invaders' boots through the house, the overturning of furniture, the smashing into cupboards, attics, wardrobes seeking out the hidden, horrified grey-eyed. The tearful farewell to home, the piling into the waiting truck of the pitiful family possessions, the bewildered mounting of the doomed grey-eyes. The truck rumbles forward, stops to pick up other grey-eyes and still more grey-eyes in the market square, at the corner store, in the parish church.

Then the wild careening ride into the woods where other villagers are waiting chalk-faced, mute, staring at each other. The unloading of the truck, the guttural command to line up with the others. Then the red-mouthed machine rifles speaking their leaden sentences from left to right and from right to left. The villagers falling, some cut in two, others with blood flowing from their mouths and eyes, those grey eyes, pleading for understanding, for an explanation as to why? Why? Others only wounded but piled into a ditch already dug behind them. The shooting party rides away, piteous hands uplift from the uncovered grave, we hear a moaning which, at times, decreases to a murmur, then mounts to a wail, then ceases altogether.

Of course, it is all fantastic and incredible, but no more fantastic and incredible than what has happened innumerable times in this very case. If one substitutes the word Jew for grey-eyed, the analogy is unassailable.

It is to be presumed that, if the defendants had been suddenly ordered to kill the grey-eyed population, they would have balked and found no difficulty in branding such an act as a legal and moral crime. If, however, fifteen years before, the Nazi Party program had denounced all grey-eyed people and since then the defendants had listened to Hitler vituperating against the grey-eyes, if they had seen shops smashed and houses destroyed because grey-eyes had worked and lived there; if they had learned of Himmler's ordering all grey-eyes into concentration camps, and then had heard speeches in Pretzsch wherein the mighty chieftains of the SS had declared that all grey-eyes were a menace to Germany--if this had happened, can we be so certain that the defendants would not have carried out a Fuehrer Order against grey-eyed people? And in that event, would there not have been the same defense of superior orders?

If now, from the vantage point of observation of a thing which did not come to pass, the defendants can denounce, as we assume they would, this hypothetical massacre, how can they less denounce a slaughter which did occur and under circumstances no less harrowing than the one pictured only for the purpose of illustration?

But throughout the trial it has been answered, in effect, that it was entirely different with the Jews. They were bearers of bolshevism. If that were their guilt, then the fact that they were Jews was only incidental. They were being exterminated not because of Judaism but because of bolshevism. If by that argument they mean that a Jew was to be executed only because he was a Bolshevik, why was it to be assumed that a Russian Jew was any more bolshevistic than a Russian Russian? Why should Alfred Rosenberg, chief Nazi philosopher, be less inclined biologically to communism than his obscure Jewish namesake and neighbor? What saved Benjamin Disraeli, leader of the Conservative Party and several times Prime Minister of Great Britain, from being a Bolshevist? And had he lived in 1941, would Hitler have declared him a carrier of bolshevism?

According to the Nazi ideology, the Jew by his very nature was simply destined to be Bolshevistic, but it is a demonstrable truism that, if the Einsatzkommandos themselves had adopted Jewish babies, those babies would have grown up to be staunch SS men. In point of fact, during the war, thousands of Czech, Polish, Russian, and Yugoslav children were taken into Germany to be reared as Germans. No one knows how many Jewish offspring were included in these carloads of kidnaped children because it was seriously assumed that so long as they were blonds they could not belong to the hated race.

During the trial there was introduced in evidence a letter written by one of the defendants in which he quoted from Heydrich:

"Many of the Jews listed in your register are already known for continually trying to deny that they belong to the Jewish race by all possible and impossible reasons. It is, on the whole, in the nature of the matter that half-breeds of the first degree in particular try at every opportunity to deny that they are Jews.

"You will agree that in the third year of the war, there are matters of more importance for the war effort, and for the security police and the security service as well, than worrying about the wailing of Jews, making tedious investigations and preventing so many of my co-workers from other and much more important tasks. If I started scrutinizing your list at all, I only did so in order to refute such attacks by documents once and for all.

"I feel sorry to have to write such a justification six and a half years after the Nuernberg laws were issued."

The defendant noted in his letter his enthusiastic accord with the sentiments expressed by Heydrich and added on his own that consideration for the Jews was "softness and humanitarian daydreaming". He also declared that it was unthinkable that a German should listen to Mendelssohn's music, and, to hearken to Offenbach's "Tales of Hoffman", simply revealed ignorance of National Socialistic ideals. Yet, he saw nothing unidealistic about invading the office of his superior, the Commissioner General of White Ruthenia, trained in the same school of Nazi idealism, entered a complaint against the defendant's action, not because seventy innocent human beings had been killed but because a subordinate had dared to come into his office and shoot his Jews without telling him about it.

The defendant was also annoyed that anyone should have questioned the propriety and correctness of removing gold fillings from the teeth of the Jews designated for killing.

The Tribunal is devoting much time and space to expounding the obvious, but perhaps it is not so obvious. Otherwise, the arguments by and on behalf of the defendants might not have been presented with such insistence. Furthermore, this is the time and place to settle definitively, insofar as it is part of the issue in this trial, the business of the so-called Jewish problem.

A problem presupposes a situation with advantages and disadvantages to be considered on either side. But what in Nazi Germany was so delicately called the "Jewish problem", was a program, that is, an anti-Jewish program of oppression leading finally to extermination. The so-called Jewish problem was not a problem but a fixation based upon the doctrine that a self-styled "master race" may exterminate a race which it considers inferior. Characterizing the same proposition as the "Jewish menace" is equally devoid of sense. In fact, if it were not so tragic, the National Socialistic attitude toward the Jews could only be considered nonsensical.

We will recall how the Einsatz units treated the Krimchaks in the Crimea. In the same area they came across a sect known as Karaims. The Karaims resembled the Krimchaks in that they shared the same Jewish religion. However, the ethnic experts in Berlin after some kind of study, concluded that the Karaims had no Jewish blood in their veins and were, therefore, exempt from the extermination order. Thus, although the Karaims had Jewish religion in their souls, they did not have that kind of corpuscles in which the seeds of bolshevism ride. Hence they had the right to live. If one can picture an Einsatz unit rounding up the worshippers in a synagogue and distinguishing the Karaims from the Krimchaks, releasing the former and killing the latter, one is privileged to decide whether the Nazi attitude toward Jewry was not something which could well fall into the category of nonsense, that is, tragic nonsense.

It was all a matter of blood and nothing could save the person with Hebrew arteries. Although any other person could change his religion, politics, allegiance, nationality, yet, according to the National Socialist ideology, there was nothing the Jew could do. It was a matter of blood, but no one has testified as to the omniscient wisdom which counted and evaluated the offending corpuscles.

One thing can be said about the Fuehrer Order. It was specific, it was unambiguous. All Jews were to be shot. And yet, despite the unambiguity of this order, in spite of the unappealable and infallible pronunciamento that Jews were absolutely outside the pale, defendant after defendant related his great consideration for the Jew. Scores of affidavits were submitted, in behalf of nearly all the accused, demonstrating their generous conduct towards some individual Jews in Germany. One of the defendants related, in a pretrial interrogation, how he had even lived with a Jewish woman. He wished to prove by this that he was entirely devoid of prejudice.

But, if it were true that the defendants regarded the Jews as equals in Germany, why did they consider them subhuman in Russia? If they did not recognize them as a potential danger in Germany, why should they regard them as a threat in the Crimea 2000 miles away? It is not too much to say that most of the Jews did not know of Hitler and his doctrines until the Einsatzgruppen arrived to kill them.

Although forming no part of the charges in the indictment, the systematic attempts to destroy the graves of the slain as described in official German documents are interesting in that they shed some light on the mental attitude of the executioners. Did they regard the executions as culpable acts, ocular evidence which should be destroyed? The defendant Blobel in his affidavit, signed 18 June 1947, stated that in June 1942, he was entrusted by Gruppenfuehrer Mueller with the task of removing the traces of the executions carried out by Einsatzgruppen in the East. He leaves nothing to the imagination.

"I myself witnessed the burning of corpses in a mass grave near Kiev, during my visit in August 1942. This grave was about 55m [meters] long, 3m wide, and 2.5 deep. When the cover had been lifted, the bodies were covered with fuel and set on fire. It took about two days for the grave to burn down. I myself saw that the grave became red-hot right down to the ground. Afterwards the grave was filled in, and thus all traces were as good as eliminated.

"Owing to the approach of the front, it was not possible to destroy the mass graves further to the south and the east, resulting from the executions of the Einsatzgruppen."

So intent was Blobel, evidently in obedience to orders, to wipe out the incriminating evidence of the killings, that he even tried to destroy the corpses by means of dynamite. Rudolf Hoess, Commandant of the Auschwitz concentration camp, who supervised thee experimentations, stated that the dynamiting method was not successful.

"Blobel constructed several experimental ovens and used wood and gasoline as fuel. He tried to destroy the corpses by means of dynamiting them, too; this method was rather unsuccessful."

Hence other mean were used.

"The ashes, ground to dust in a bone mill, were thrown in the vast forests around. Staf. Blobel had the order to locate all mass graves in the entire Eastern Territory and to eliminate them...The work itself was carried out by Jewish work units, which, upon finishing their particular task, were shot. Concentration camp Auschwitz had to furnish continuously Jews for this Kommando."

Duress Needed For Plea of Superior Orders

But it is stated that in military law even if the subordinate realizes that the act he is called upon to perform is a crime, he may not refuse its execution without incurring serious consequences, and that this, therefore, constitutes duress. Let it be said at once that there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime which he condemns. The threat, however, must be imminent, real, and inevitable. No court will punish a man who, with a loaded pistol at his head, is compelled to pull a lethal lever. Nor need the peril be that imminent in order to escape punishment. But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission? The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order. If the second proposition be true, the plea of superior orders fails. The doer may not plead innocence to a criminal act ordered by his superior if he is in accord with the principle and intent of the superior. When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under superior orders.

If the mental and moral capacities of the superior and subordinate are pooled in the planning and execution of an illegal act, the subordinate may not subsequently protest that he was forced into the performance of an illegal undertaking.

Superior means superior in capacity and power to force a certain act. It does not mean superiority only in rank. It could easily happen in an illegal enterprise that the captain guides the major, in which case the captain could not be heard to plead superior orders in defense of his crime.

If the cognizance of the doer has been such, prior to the receipt of the illegal order, that the order is obviously but one further logical step in the development of a program which he knew to be illegal in its very inception, he may not excuse himself from responsibility for an illegal act which could have been foreseen by the application of the simple law of cause and effect. From 1920, when the Nazi Party program with its anti-Semitic policy was published, until 1941 when the liquidation order went into effect, the ever-mounting severity of Jewish persecution was evident to all within the Party and especially to those charged with its execution. One who participated in that program which began with Jewish disenfranchisement and depatriation and led, step by step, to deprivation of property and liberty, followed with beatings, whippings and measures aimed at starvation, may not plead surprise when he learns that what has been done sporadically; namely murder, now is officially declared policy. On 30 January 1939, Hitler publicly declared in a speech to the Reichstag that if war should come it would mean "the obliteration of the Jewish race in Europe".

One who embarks on a criminal enterprise of obvious magnitude is expected to anticipate what the enterprise will logically lead to.

In order successfully to plead the defense of superior orders the Opposition of the doer must be constant. It is not enough that he mentally rebel at the time the order is received. If at any time after receiving the order he acquiesces in its illegal character, the defense of superior orders is closed to him.

Many of the defendants testified that they were shocked with the order when they first heard it. This assertion is, of course, contradicted by the other assertion made with equal insistence, and already disposed of, that the Fuehrer Order was legal because the ordered executions were needed for the defense of the Fatherland. But if they were shocked by the order, what did they do to oppose it? Many said categorically that there was nothing to do. lt would be enough, in order to escape legal and moral stigmatization to show the order was parried every time there was a chance to do so. The evidence indicates that there was no will or desire to depreciate its fullest intent. When the defendant Braune testified that he inwardly opposed the Fuehrer Order, he was asked as to whether, only as a matter of salving his conscience in the multiplicitous executions he conducted, he ever released one victim. The interrogation follows:

"Q. But you did not in compliance with that order attempt to salve your conscience by releasing one single individual human creature of the Jewish race, man, woman, or child?

"A. I have already said that I did not search for children. I can only say the truth. There were no exceptions, and I did not see any possibility."

One may accuse the Nazi military hierarchy of cruelty, even sadism of one will. But it may not be lightly charged with inefficiency. If any of these commando leaders had stated that they were constitutionally unable to perform this cold-blooded slaughter of human beings, it is not unreasonable to assume that they would have been assigned to other duties, not out of sympathy or for humanitarian reasons, but for efficiency's sake alone. In fact Ohlendorf himself declared on this very subject--

In two and a half years I had sufficient occasion to see how many of my Gruppe [group] did not agree to this order in their inner opinion. Thus, I forbade the participation in these executions on the part of some of these men, and I sent some back to Germany."

Ohlendorf himself could have got out of his execution assignment by refusing cooperation with the army. He testified that the Chief of Staff in the field said to him that if he, Ohlendorf, did not cooperate, he would ask for his dismissal in Berlin.

The witness Hartel testified that Thomas, Chief of Einsatzgruppe B, declared that all those who could not reconcile their conscience to the Fuehrer Order, that is, people who were too soft, as he said, would be sent back to Germany or assigned to other tasks, and that, in fact, he did send a number of people including commanders back to the Reich.

This might not have been true in all Einsatzgruppen, as the witness pointed out, but it is not enough for a defendant to say, as did Braune and Klingelhoefer, that it was pointless to ask to be released, and, therefore, did not even try. Exculpation is not so easy as that. No one can shrug off so appalling a moral responsibility with the statement that there was no point in trying. The failure to attempt disengagement from so catastrophic an assignment might well spell the conclusion that the defendant involved had no deep-seated desire to be released. He may have thought that the work was unpleasant but did it nonetheless. Even a professional murderer may not relish killing his victim, but he does it with no misgivings. A defendant's willingness may have been predicated on the premise that he personally opposed Jews or that he wished to stand well in the eyes of his comrades, or by doing the job well he might earn rapid promotion. The motive is unimportant if he killed willingly.

The witness Hartel also related how one day as he and Blobel were driving through the country, Blobel pointed out to him a long grave and said, "Here my Jews are buried." One can only conclude that Blobel was proud of what he had done. "Here my Jews are buried." Just as one might speak of the game he had bagged in a jungle.

Despite the sustained assertion on the part of the defendants that they were straight-jacketed in their obedience to superior orders, the majority of them have, with testimony and affidavits, demonstrated how on numerous occasions they opposed decrees and orders handed down by their superiors. In an effort to show that they were not really Nazis at heart, defendant after defendant related his dramatic clashes with his superiors. If one concentrated only on this latter phase of the defense, one would conclude that these defendants were all ardent rebels against National Socialism and valiantly fought against the inhuman proposals put to hem. Thus, one affiant says of the defendant Willy Seibert that he "was strongly opposed to the measures taken by the Party and the government".

Of Steimle an affiant said,
"Many a time he opposed the Party agencies and so-called superior leaders."
Another affidavit not only states that Steimle opposed violence but that in his zeal for justice he shrewdly joined the SD in order to be able "to criticize the short comings in the Party". Again it was stated that "repeatedly his sense of justice led him to oppose excesses, corruptions, and symptoms of depravity by Party officers."

Of Braune an affiant states, "over and over again Dr. Braune criticized severely our policy in the occupied territories (especially in the East, Ukraine, and Baltic States) ".

During the time he served in Norway, Braune was a flaming sword of opposition to tyranny and injustice in his own camp. He bitterly opposed the Reich Commissioner Terboven, cancelled his orders, condemned large-scale operations, released hostages, and freed the Norwegian State Minister Gerhardsen. One affidavit said that in these actions "Braune nearly always went beyond his authority." And yet in spite of this open rebellion Braune was not shot or even disciplined.

Why is it that in Norway he acted so differently from the manner in which he performed in Russia? Was he more the humanitarian in Norway? The answer is not difficult to find. One of the affiants very specifically states:

"Right from the beginning of our conferences, Braune opposed the large-scale operations which Terboven and Fehlis continually carried out. He did not expect the slightest success from such measures, and saw in them only the danger of antagonizing the Norwegian population more and more against German policy and the danger of increasing their spirit of resistance."

Thus, the defendants could and did oppose orders when they did not agree with them. But when they ideologically espoused an order such as the Fuehrer Order they had no interest in opposing it.

German Precedent on Superior Order Doctrine

The defense of superior orders has already been passed upon by a German court. In 1921 two officers of the German U-boat 68 were charged with violation of the laws of war in that they fired at and killed unarmed enemy citizens seeking to escape from the sinking Hospital Ship H.M.S. Llandovery Castle. The defendants pleaded lack of guilt in that they had merely carried into effect the order given them by their commander, First Lieutenant Patzig. The German Supreme Court did find as a fact that Patzig ordered his subordinates Dithmar and Boldt to fire at the lifeboats, but it adjudicated them guilty nonetheless, stating:

"It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But, no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But, this case was precisely one of them. For in the present instance, it was perfectly clear to the accused that killing defenseless people in the lifeboats could be nothing else but a breach of law. As naval officers by profession they were well aware, as the naval expert, Saalwaechter, has strikingly stated, that one is not legally authorized to kill defenseless people. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out a breach of law. They should, therefore, have refused to obey. As they did not do so they must be punished." (American Journal of International Law, Vol. 16, 1922 p. 721-2.)

Despite this very telling precedent several of the attorneys for the defense asked in behalf of their clients, What could they have done? After all, the defendants were soldiers and were required to obey orders. Ordinarily, in war, the proposition of unquestioning obedience involves a set of circumstances which subjects the subordinate to the possibility of death, wounding, or capture. And it is traditional in such a situation that, in consonance with the honor of his calling, the soldier does not question or delay but sets out stoically to face the peril and even self-immolation. Lord Tennyson immortalized this type of glorious self-sacrifice when he commemorated the Cavalry Charge at Balaklava in the Crimea:

"Theirs not to make reply, Theirs not to reason why, Theirs but to do and die."
The members of the Einsatzgruppen, which, by a twist of ironic fate, were operating in the same Crimea and surrounding territory about one hundred years later, were not, however, facing the same situation which confronted Tennyson's Light Brigade. The Einsatz battalions were not being called upon to face shot and shell. They were not ordered to charge into the mouths of cannon. They were called upon to shoot unarmed civilians standing over their graves.

No soldier would be disgraced in asking to be excused from so one-sided a battle. No soldier could be accused of cowardice in seeking relief from a duty which was, after all, not a soldier's duty. No soldier or officer attempting escape from such a task would be pleading avoidance of a military obligation. He would simply be requesting not to be made an assassin. And if the leaders of the Einsatzgruppen had all indicated their unwillingness to play the assassin's part, this black page in German history would not have been written.

What could the defendants have done, if they could not have been relieved? They could have been less zealous in the execution of the inhuman order. Whole populations of cities, districts, and wide lands were within their power. No Roman emperor had greater absolutism of decision over life and death than they possessed in their areas of operation. They were not ordered within any given town to shoot a precise number of people and a fixed number of women and children. But men like Braune could see no reason for making exceptions.

Several of the defendants stated that it would have been useless to avoid the order by subterfuge, because had they done so, their successors would accomplish the task and thus nothing would be gained anyway. The defendants are accused here for their own individual guilt. No defendant knows what his successor would have done. He could possibly have also indicated his reluctance and with a succession of refusals properly submitted, the order itself might have lost its efficacy. But in any event no execution would have taken place that day. One defendant stated that to have disobeyed orders would have meant a betrayal of his people. Does he really mean that the German people, had they known, would have approved of this mass butchery?

The masses of the home-loving German people, more content to have a little garden in which to grow a plant or two than the promise of vast lands beyond the horizon, will here learn how they were betrayed by their supposed champions. Here they will also learn of the inhumanity and the oppression and the shedding of innocent blood committed by the regime founded on the Fuehrerprinzip [leadership principle].

In his attack on Control Council Law No. 10, Dr. Mayer declared that it invalidates two fundamental principles of the legal systems of all civilized nations:

"(1) The principle nulla poena sine lege.

"(2) Validity of the excuse of having acted under order."

The Tribunal has already disposed of objection number 1. Objection number 2 is no more convincing than was objection number 1. Law No. 10 does not invalidate the excuse of superior orders. It states:

"(b) The fact that any person acted pursuant to the order of his Government or of his superior does not free him from responsibility for a crime, but may be considered in mitigation."

Dr. Mayer, like others, misreads this provision and substitutes for the word "crime" some other word, possibly "act". This makes the provision to read that anyone acting pursuant to the orders of his Government or superior does not free himself from responsibility for any "act". But the provision specifically states "crime". Unless it is established that the deed in question is a crime, then naturally there needs to be no explanation for its commission. If, however, the act is a crime then there can be no excuse for its commission. No superior can authorize a crime. No one can legalize what is demonstrated categorically and definitely to be a crime.

The main objective of the defense in this case has been to prove that the acts of the Einsatzgruppen were not crimes, that they were acts of self-defense committed in accordance with the rules of war. If, however, it is proved that they were crimes, then, naturally, the approval of another criminal would not make the acts any the less crimes. Once it is juridically established that a certain act is a crime, then all those who participated in it, both superior and subordinates, are accomplices.

How could the approval of Hitler possibly condone the offense, if offense it was? Hitler was not above international law. Let us suppose that in 1935 Hitler ordered one of his men to go to Siam and there assassinate its King. Would it be argued that the assassin in that situation would be immune because acting under superior orders? Any judicial inquiry would establish that the Siam assassin had committed a crime and the fact that he had acted in pursuance to the order of his government or a superior could not possibly free him from responsibility for the crime. This is exactly what Control Council Law No. 10 says, and this is what the law has always said, or ever since there was international law.

As a matter of fact, Article 47 of the German Military Penal Code goes much farther than Control Council Law No. 10. Under the German code the subordinate may be convicted even if no crime was actually committed. It is sufficient if the order aims at the commission of a crime or offense. The German code makes the obeying subordinate responsible even for any "civil" or "general offenses", i.e., for comparatively insignificant breaches of law which are not contemplated in the Allied law. Nor does the German code, as contrasted to the Allied law, mention the defense of superior orders as a possible mitigating circumstance.

Several counsel have quoted article 347 of the American Rules of Land Warfare in support of their position on superior orders. The section in question, after listing various offenses against the rules of warfare, declares:

"...Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall."

What has escaped some analysts of this provision is that the word "individuals" is intended to apply to individuals who make up a military unit, that is, ordinarily, soldiers of lower rank. It applies naturally also to officers, but only provided they are serving under another officer of a higher rank. Unless one accepts this meaning the word "commanders" appearing in his second sentence would be entirely elusive as to its significance. But it is to be noted that in square juxtaposition to the men (and perhaps officers) who make up the military unit, the Article puts the commanders of such units; and by "commanders" is obviously meant the officers or acting officers, in charge of any armed unit.

As the colonel is commander of a regiment, the major of a battalion, and the captain of a company, the sergeant or 2d lieutenant may be in charge of a platoon. If the unit commander were not responsible, and the responsibility climbed upward from 'grade to grade, the result would be that the only one who could ever be accountable for an illegal order would be the chief executive of the nation, that is, the President, King, or Prime Minister, depending on the country involved. That such singular responsibility was not intended is evidenced in the use of the plural ''commanders'' instead of the singular "commander". Making this meaning absolutely clear, the provision specifically mentions two types of "commanders" who are to be held responsible--

(a) commanders who order their units to commit war crimes; and (b) commanders if the troops under their authority commit such crimes.

Thus, the provision proclaims clearly that the commander is to be responsible whether he gives the order to commit war crimes, or whether the troops under his authority commit them at the behest of somebody else, since he has the control over the troops and is responsible for their acts.

Since it has not been denied that the defendants were commanders of Einsatz units, they clearly would fall within the Provisions of Article 347, American Rules of Land Warfare. This Article 347 was repealed in 1944, but it has here been discussed at length because defense counsel made much of it, and because it was still law at the time the Einsatzgruppen were operating. In further confirmation of the interpretation above given of Article 347, reference is made to Article 64 of the American Articles of War which announces punishment for the disobedience of any lawful command of a superior officer. Obviously if the order is unlawful he may not be punished for refusing to obey it.

The subject of superior orders is not so confusing and complicated as it had been made by some legal commentators. In considering the law in this matter, we must keep in mind that fundamentally there are some legal principles that stand out like oak trees. Much underbrush has grown up in the vicinity and they seem to confuse the view. But even the most casual observation will catch on the legal landscape these sturdy oaks which announce that--

1. Every man is presumed to intend the consequences of his act.

2. Every man is responsible for those acts unless it be shown that he did not act of his own free will.

3. Deciding the question of free will, all the circumstances of the case must be considered because it is impossible to read what is in a man's heart.

Dr. Aschenauer correctly referred to one of these trees in Lord Manfield's charge to the jury in Stratton's case (1780) Howell, State Trials, Volume 21, page 1062-1224:

"A state of emergency is a reason for justification, since nobody can be guilty of a crime without having intended it.

If there is irresistible, physical duress, then the acting person has no volition with regard to the deed."

Was there irresistible, physical duress? Was there volition with regard to the deed? The answering of these two questions will serve as safe guides in applying the criteria herein announced in the discussion on the subject of superior orders.

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Post by David Thompson » 22 Aug 2007 15:40

Here is the discussion of the defense of superior orders from the judgment in the "Hostage Case." The full text of the judgment can be seen at:

Anti-partisan warfare and the "Hostage Case"

Before venturing into a discussion of specific issues, it seems advisable to briefly state the general nature of international law and the sources from which its principles can be ascertained. No attempt will be made here to give an all inclusive definition of international law, in fact, there is justification for the assertion that it ought not to be circumscribed by strict definition in order that it may have ample room for growth. Any system of law that is obviously subject to growth by the crystallization of generally prevailing custom and practice into law under the impact of common acceptance or consent must not be confined within the limits of formal pronouncement or complete unanimity. For our purposes it is sufficient to say that international law consists of the principles which control or govern relations between nations and their nationals. It is much more important to consider the sources from which these principles may be determined.

The sources of international law which are usually enumerated are (1) customs and practices accepted by civilized nations generally, (2) treaties, conventions, and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) the diplomatic papers. These sources provide a frame upon which a system of international law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grow and expand to meet changed conditions. The codification of principles is a helpful means of simplification, but it must not be treated as adding rigidity where resiliency is essential. To place the principles of international law in a formalistic strait-jacket would ultimately destroy any effectiveness that it has acquired.

The tendency has been to apply the term "customs and practices accepted by civilized nations generally," as it is used in international law, to the laws of war only. But the principle has no such restricted meaning. It applies as well to fundamental principles of justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule of justice is entitled to be declared a principle of international law, an examination of the municipal laws of states in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified. There is convincing evidence that this not only is, but has been the rule. The rules applied in criminal trials regarding burden of proof, presumption of innocence, and the right of a defendant to appear personally to defend himself are derived from this source. Can it be doubted that such a source of international law would be applied to an insane defendant? Obviously he would not be subjected to trial during his incompetency. Clearly, such a holding would be based upon a fundamental principle of criminal law accepted by nations generally. If the rights of nations and the rights of individuals who become involved in international relations are to be respected and preserved, fundamental rules of justice and right which have become commonly accepted by nations must be applied. But the yardstick to be used must in all cases be a finding that the principle involved is a fundamental rule of justice which has been adopted or accepted by nations generally as such.

The defendants invoke the defensive plea that the acts charged as crimes were carried out pursuant to orders of superior officers whom they were obliged to obey. This brings into operation the rule just announced. The rule that superior order is not a defense to a criminal act is a rule of fundamental criminal justice that has been adopted by civilized nations extensively. It is not disputed that the municipal law of civilized nations generally sustained the principle at the time the alleged criminal acts were committed. This being true, it properly may be declared as an applicable rule of international law.

It cannot be questioned that acts done in time of war under the military authority of an enemy cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war. Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior's orders be murder, the production of the order will not make it any less so. It may mitigate but it cannot justify the crime. We are of the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the interior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice. In the German War Trials (1921), the German Supreme Court of Leipzig in The Llandovery Castle case said, "Patzig's order does not free the accused from guilt. It is true that, according to paragraph 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation of the law as is punishable, the superior officer issuing such an order is alone responsible. According to No. 2, however, the subordinate obeying such an order is liable to punishment, if it was known to him that the order of the superior involved the infringement of civil or military law."

It is true that the foregoing rule compels a commander to make a choice between possible punishment by his lawless government for the disobedience of the illegal order of his superior officer, or that of lawful punishment for the crime under the law of nations. To choose the former in the hope that victory will cleanse the act of its criminal characteristics manifests only weakness of character and adds nothing to the defense.

We concede the serious consequences of the choice especially by an officer in the army of a dictator. But the rule becomes one of necessity, for otherwise the opposing army would in many cases have no protection at all against criminal excesses ordered by superiors.

The defense relies heavily upon the writings of Professor L. Oppenheim to sustain their position. It is true that he advocated this principle throughout his writings. As a co-author of the British "Manual of Military Law," he incorporated the principle there. It seems also to have found its way into the United States "Rules of Land Warfare" (1940). We think Professor Oppenheim espoused a decidedly minority view. It is based upon the following rationale: "The law cannot require an individual to be punished for an act which he was compelled by law to commit." The statement completely overlooks the fact that an illegal order is in no sense of the word a valid law which one is obliged to obey. The fact that the British and American Armies may have adopted it for the regulations of its own armies as a matter of policy does not have the effect of enthroning it as a rule of international law. We point out that army regulations are not a competent source of international law. They are neither legislative nor judicial pronouncements. They are not competent for any purpose in determining whether a fundamental principle of justice has been accepted by civilized nations generally. It is possible, however, that such regulations, as they bear upon a question of custom and practice in the conduct of war, might have evidentiary value, particularly if the applicable portions had been put into general practice. It will be observed that the determination, whether a custom or practice exists, is a question of fact. Whether a fundamental principle of justice has been accepted, is a question of judicial or legislative declaration. In determining the former, military regulations may play an important role but in the latter they do not constitute an authoritative precedent.

Those who hold to the view that superior order is a complete defense to an international law crime, base it largely on a conflict in the articles of war promulgated by several leading nations. While we are of the opinion that army regulations are not a competent source of international law, where a fundamental rule of justice is concerned we submit that the conflict in any event does not sustain the position claimed for it. If, for example one be charged with an act recognized as criminal under applicable principles of international law and pleads superior orders as a defense thereto, the duty devolves upon the court to examine the sources of international law to determine the merits of such a plea. If the court finds that the army regulations of some members of the family of nations provide that superior order is a complete defense and that the army regulations of other nations express a contrary view, the court would be obliged to hold, assuming for the sake of argument only that such regulations constitute a competent source of international law, that general acceptation or consent was lacking among the family of nations. In as much as a substantial conflict exists among the nations whether superior order is a defense to a criminal charge, it could only result in a further finding that the basis does not exist for declaring superior order to be a defense to an international law crime. But, as we have already stated, army regulations are not a competent source of international law when a fundamental rule of justice is concerned. This leaves the way clear for the court to affirmatively declare that superior order is not a defense to an international law crime if it finds that the principle involved is a fundamental rule of justice and for that reason has found general acceptance.

International law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals. This defensive plea is not available to the defendants in the present case, although, if the circumstances warrant, it may be considered in mitigation of punishment under the express provisions of Control Council Law No. 10.

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Post by David Thompson » 22 Aug 2007 15:43

Here is a discussion of the same issue from the judgment against Erhard Milch. The full judgment can be seen at:

NMT judgment against Ehard Milch, viewtopic.php?t=65002

Our conclusion is that the same unlawful acts of violence which constituted war crimes under count one of the indictment also constitute crimes against humanity as alleged in count three of the indictment. Having determined the defendant to be guilty of war crimes under count one, it follows, of necessity, that he is also guilty of the separate offense of crime against humanity, as alleged in count three, and this Tribunal so determines.

In exculpation, the defendant states that he was a German soldier and that whatever was done by him or with his knowledge or consent was done in pursuance of a national military policy promulgated by Hitler and in obedience to military orders. He protests that, no matter how violently he disagreed with the methods used by the German Reich in the furthering of its policy of aggressive war, he was helpless to extricate himself and had no alternative except to stay with the venture to the bitter end. It is true that withdrawal may involve risks and dangers, but these are incidental to the original affiliation with the unlawful scheme. He who elects to participate in a venture which may result in failure must make his election to abandon the enterprise if it is not to his liking or to stay as a participant, and win or lose according to the outcome.

Much significance must be attached to the meeting of 23 May 1939, at which the defendant was admittedly present and in which Hitler spoke at great length as to his plans for the subjugation of friendly minor nations and the ultimate conquest of Europe. A Purported record of the events at this meeting has been introduced in evidence and has been found to be reliable and accurate by the International Military Tribunal. The defendant has throughout insisted that this record is spurious and was made by Schmundt long after the occasion which it records. Of course, it was never anticipated that this record, which was marked "Top Secret, To be Transmitted by Officer Only," would ever be captured and its contents become known. It is not surprising that those who sat and listened to the astounding program of the Fuehrer now wish that they had been absent. It cannot be denied that there was a meeting of some kind which the defendant attended and at which the Fuehrer spoke, and further that it was held a few short months before the actual invasion of Poland, as forecast in the report of the meeting. The Schmundt paper does not pretend to be a verbatim report of Hitler's exact words, but certainly all of the diabolical plans which it reveals were not manufactured by Schmundt out of thin air, attributed to Hitler, and then marked "Top Secret". Even if Hitler said only a small part of what is attributed to him by Schmundt, there was enough said to advise and warn a man of the defendant's intelligence and experience that mischief was afoot. Every sentence shrieks of war. The record hints at nothing else, and, if all references to conquest and war and world domination are eliminated, Hitler did not speak at all. At this early date, the defendant must be charged with knowledge that a war of aggression, to be ruthlessly pursued, was planned. This, then, was the time for him to have made his decision - the decision which confronts every man daily - to be honorable or dishonorable. Life consists quite generally in making such decisions. As an old soldier, schooled in the code of war and well aware of the principles to which an honorable soldier must adhere, he sat complacently and listened to a proposed program which violated national honor, personal integrity and the moral code of an honest soldier. He made his choice and elected to ride with the tyrant.

When the defendant joined the National Socialist Party in 1933, Germany was in the throes of dire economic and political distress and was burdened by a myriad of political parties, each with its separate program and all functioning at cross-purposes. The defendant elected to affiliate with the NSDAP because, he testified, he believed it offered the most likely agency for bringing order out of chaos. But very soon he must have realized that he had joined a band of villains whose program contemplated every crime in the calendar. The Nazi code was not a secret. It was published and proclaimed by the Party leaders in long harangues to the people; decrees and directives were broadcast; the infamous Streicher was spreading anti-Jewish obscenities throughout the Reich in "Der Stürmer"; Röhm and a large number of the SA were murdered by Hitler's orders; hundreds of German citizens were cast into concentration camps for "political re-education," without hearing or opportunity for defense; the iniquitous Gestapo stormed through the land, with power over life and liberty which could not be questioned; in public view Jews were beaten and killed, their synagogues burned and their stores destroyed. The Party proclaimed its objectives from the house-tops and verified them by open public conduct throughout the Reich. The significant fact which must not be overlooked is that all these things happened before the war was launched, at a time when there was no claim upon the loyalty of the defendant as a soldier to protect his homeland at war. He protests that he never subscribed to the master race philosophy, but 13 years before he joined the Party in 1933, its precepts and demands had been proclaimed, among which was Point 4,
"Only a member of the race can be a citizen. A member of the race can only be one who is of German blood, without consideration of creed. Consequently no Jew can be a member of the race."
The humblest citizens of Germany knew that the iniquitous doctrines of the Party were being implemented by ruthless acts of persecution and terrorism which occurred in public view. Thousands of obscure German citizens were only too well aware that they were living under the scrutiny of an army of spies and saw their friends and relatives summarily dispatched to concentration camps for the slightest suspicion of dissidence. The defendant did not live in a vacuum. He was not blind nor deaf. Long before 1939, long before his military loyalty was called into play, long before the door of withdrawal was closed, he could have seen the bloody handwriting on the wall, for murder and enslavement of his own countrymen was there written in blazing symbols. But he had taken on the crimson mantle of the Party, with all its ghastly implication, and he wore it with glory and profit to himself to the end. Others with more courage and higher principles and with more loyalty to the ancient German ideals rebelled and withdrew from the brutal crew - von Clausewitz, Yorck von Wartenburg, Schlegelberger, Schmitt, Eltz von Ruebenach, Tesmer. These men in high positions had the character to repudiate great evil, and if in so doing they took risks and made sacrifices, nevertheless, they made their choice to stand with decency and justice and honor. The defendant had his opportunity to join those who refused to do the evil bidding of an evil master, but he cast it aside and his professed repentance now comes too late.

What a sordid picture of a civilized nation - the nation of Goethe and Heine, of Beethoven and Schubert, even of Bismarck and von Hindenburg - fawning and cringing at the feet of a small man with delusions of grandeur. Even when madness crept in to intensify his frenzy and fear of defeat put spurs to his ferocity, they still said,
"We are his people. He is our immaculate leader."
Men of large capacities, even of genius, prostituted their talents before a puny renegade who used them impiously and paid off his puppets with medals and pelf. But the strutting menials stayed with him. So long as success was on the horizon, they bowed and scraped and sought to outdo each other in supine adulation. They tell us now, "Hitler was wrong." But they never told him that. Right or wrong, their only concern was, "Can he win the war? And what will it mean for me?" They heard him proclaim as early as November 1937,
"The question for Germany is where the greatest possible conquest could be made at the lowest possible cost,"
and they nodded and shouted, "Heil Hitler," and maneuvered to get closer to him. Before the invasion of Poland, they heard this bloodthirsty tyrant say,
"In starting and making a war, not the right is what matters, but victory."
And this defendant, as part of the unholy array, rolled up his sleeves and said,
"Let me help. Give me men and more men, no matter where you get them."

In a civilized state which recognizes the sanctity of human lives and human rights, no man - no group of men - should be endowed with impotence. The history of human relations, from Herod to Hitler, has repeatedly demonstrated this to be true. Omnipotence is only for God. Be a man ever so wise, ever so benevolent, ever so trustworthy, there still exists in him the frailty, the fallibility, the susceptibility to temptation that is inherent in every man. If the only protection against the tyranny of an autocrat is his own self-restraint, that is not enough, for power feed on power, and the temptation to stretch authority to its limit is irresistible.

What, then, of the responsibility of those who bask in the reflected radiance of omnipotence, who get their sustenance from it and who arrogantly carry out its mandates and crush any resistance to it? Are they not the hands and limbs of the monster, carrying out the orders of the head? Surely, they cannot be allowed to detach themselves from the corpus by saying,
"These arms and legs are innocent - only the head is guilty?"

In an authoritarian state, the head becomes the supreme authority for woe as well as weal. Those who subscribe to such a state submit to that principle. If they abjectly place all the power in the hands of one man, with no right reserved to check or limit or repudiate, they must accept the bitter with the sweet. This is especially true of those of high places in the state - those who choose to enjoy the honor, the emoluments and the power of such high stations. By accepting such attractive and lucrative posts under a head whose power they know to be unlimited, they ratify in advance his every act, good or bad. They cannot say at the beginning,
"The Fuehrer's decisions are final; we will have no voice in them; it is not for us to reason why; his will is law,"
and then, when the Fuehrer decrees aggressive war or barbarous inhumanities or broken covenants, to attempt to exculpate themselves by saying,
"Oh, we were never in favor of those things."

One cannot escape the conviction that, had the war terminated in victory for Germany, all the acts of Hitler, including those related to the charges in this indictment, would have been hailed as strokes of genius, and that this defendant would now be elbowing his way into the front row of those claiming to have successfully and victoriously carried out Hitler's orders and policies - in fact, claiming co-authorship in many. But with Germany defeated and Hitler dead, it becomes naively convenient to take refuge in the flimsy claim that no one except Hitler was in favor of the invasion of Poland and Russia and France and the rape of Holland and Belgium and Norway and Denmark.

The defendant insists that he knew nothing of the atrocities and violence which were culminating day by day throughout Europe. Being a good German, he says, he supinely obeyed the decree which forbade listening to foreign broadcasts or reading foreign periodicals. He surrendered to a political philosophy which outlawed the ordinary means of knowledge and which prevented the formation of rationalized opinion or judgment. No one might read or listen or talk except in predetermined channels. Ignorance was prescribed by law. The first weapon of tyranny is to keep its victims in darkness. The Germans were an intelligent, cultured people; they were not ignorant serfs. What a travesty to say that a people which has produced some of the greatest intellects in human history is not fit to be told the truth.

Desperate and discouraged peoples, distraught with the crushing problems of hunger and insecurity, have always cried out for a miracle worker to lead them out of the wilderness. Then is the golden opportunity for the mountebank with bland promises and soothing phrases to provide a poisonous panacea for their distress. In their desperation they fail to realize that despotism has a way of beginning with benevolence and ends by being merely despotic. Masquerading in the mantle of a messiah, the wily opportunist lulls them into subscribing to some glib Fuehrerprinzip which means,
"Ask no questions; leave everything to me."
And when the debacle comes, they realize that they have left everything to him - honor, dignity, self-respect, liberty, even life itself - and they end up degraded, ashamed, impoverished, and hopeless. But have they ended up wiser? The universal fear today is that in their desperation they will repeat the vicious process by saying,
"Last time we picked the wrong man. Let us seek a new messiah. He will save Us."
The lessons of one generation are quickly forgotten by the next, but the inexorable laws of nature are immutable. The tragic fruits of tyranny and intolerance will always be the moral decay of peoples and the degradation of human dignity.

Over the heavy gates which shut in the hapless victims at Dachau is a legend reading,
"Work will set you free."
The toil of slaves cannot set them free; it only serves to further enslave them. Some day an enlightened German people will storm those gates and all others like them and recast them into an image of Truth - an imperishable figure with eyes open and unbandaged. So long as Truth stands free and untarnished, no future Hitler will ever arise to deceive and degrade the German nation. Then there will never be another Dachau.

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Re: The Defense of Superior Orders

Post by David Thompson » 07 Aug 2009 23:36

Obedience to Orders as a Defense to a Criminal Act (1971) ... orders.pdf

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Re: The Defense of Superior Orders

Post by David Thompson » 07 Mar 2011 17:58

This digest on the defense of superior orders, as it existed in WWII, is from Law Reports of Trials of War Criminals vol. XV, United Nations War Crimes Commission (1949), pp. 157-160:

(i) The plea of superior orders has been raised by the Defence in war crime trials more frequently than any other. The most common form of the plea consists in the argument that the accused was ordered to commit the offence by a military superior and that under military discipline orders must be obeyed. A closely related argument is that which claims that had the accused not obeyed he would have been shot or otherwise punished ; it is sometimes also maintained in court that reprisals would have been taken against his family. A variation is to be found in the argument of Counsel for Dr. Klein, one of the accused in the Belsen Trial ;(3) Counsel claimed that if a British soldier refused to obey an order he would face a court-martial, where he would be able to contest the lawfulness of the order, whereas Dr. Klein had no such protection.

Not unnaturally, then, the plea has received treatment or reference on many previous occasions in the pages of these volumes.(4)

(ii) It has often been said that an accused is entitled under international law to obey commands which are lawful or which he could not reasonably be expected to know were unlawful. The question, however, arises whether these commands must be lawful under municipal law or under international law ; as will be seen,(5) the legality under municipal law of the accused's acts does not free him from liability to punishment if those acts constitute war crimes, and it seems to follow that the plea of having acted upon orders which were legal under municipal law must also fail to constitute a defence. On the other hand, if the order is legal under international law, it is difficult
(2) See also p. 156
(3) See Vol. II; p. 79.
(4) See especially Vol. V, pp. 13-22, Vol. VII, p. 65, Vol. VIII, pp. 90-2 and Vol. X, pp. 174-6 ; and see also Vol. XI, pp. 24-5, 46-50, 77-8, and Vol. XIII, pp. 68-9.
(5) See pp. 161-2.


to show how an act committed in obedience to it could be illegal under that system.(1) If the act were thus legal in itself, there would be no need for an accused to have recourse to the defence of superior orders. The true test in practice is whether an order, illegal under international law, on which an accused has acted was or must be presumed to have been known to him to be so illegal, or was obviously so illegal (" illegal on its face " to use the term employed by the Tribunal in the High Command Trial) or should have, been recognised by him as being so illegal. The general upshot of a large number of decisions, and of the advice of Judge Advocates to British or Commonwealth courts,(2) is that, if the order comes within one or more of these categories, then the accused cannot rely upon the plea of superior orders.

The Judgment delivered in the Einsatzgruppen Trial underlined certain other essentials. It was said that : " If one claims duress in the execution of an illegal order it must be shown that the harm caused by obeying the 'illegal order is not disproportionally greater than the harm which would result from not obeying the illegal order. It would not be an adequate excuse, for example, if a subordinate, under orders, killed a person known to be innocent, because by not obeying it he would himself risk a few days of confinement. Nor if one acts under duress, may he without culpability, commit the illegal act once the duress ceases."

Further, " the doer may not plead innocence to a criminal act ordered by his superiors if he is in accord with the principle and intent of the superior . In order successfully to plead the defence of Superior Orders the opposition of the doer must be constant. It is not enough that he mentally rebel at the time the order is received. If at any time after receiving the order he acquiesces in its illegal character, the defence of Superior Orders is closed to him."(3)

Before this treatment of the circumstances in which the plea may be effectively put forward is closed, it should be added that, while the plea in its typical form relates to military orders given to military personnel, it may also in suitable circumstances be pleaded by civilians who acted under orders.(4)

(iii) As to the effectiveness of the plea when put forward in circumstances which, in accordance with the rules just laid down, make it permissible to plead superior orders, the general attitude of the courts and the rule expressed in numerous municipal and international law enactments, including the Charter of the International Military Tribunal and Law No. 10, has been that, while obedience to superior orders does not constitute a defence upon
(1) Unless the act constituted an illegal means of fulfilling a legal order. This, however, is not the situation in which the plea is in fact usually put forward.
(2) See Vol. V, pp. 14-19 and the cross-references there set out, Vol. VII, p. 65, Vol. VIII, p. 50 and p. 91, Vol. XI, pp. 98-100 ; Vol. XII, p. 74 ; Vol. XIII, pp. 114-17 and 144-5 and Vol. XIV, pp. 146-151. These rules have not invariably been followed ; compare the acquittal of Luger in the Wagner Trial ; this accused knew of the illegality of the orders which he obeyed. (See Vol. V, p. 16).
(3) Vol. VIII, pp. 90-1.
(4) As it was by Luger, a Public Prosecutor who acted on the orders of Gauleiter Wagner. (See Vol. III, pp. 54-5).
For a discussion of the question of superior orders thought to be in pursuance of legitimate reprisals, See Vol. VIII, pp. 7-8 and Vol. XI, pp. 25-7.


which an accused can rely with certainty of being completely protected thereby, it may at the discretion of the court be treated as a factor which justifies mitigation of punishment.(1)

In the trial of Gozawa Sadaichi and others at Singapore, 21st January-4th February, 1946,(2) a British Military Court in passing sentences addressed the following language to two of the accused :

" Chiba Masami, your participation in the horrible scene which has been described in this Court is undoubted. But it would be unjust to deal with you on the same footing as your superior officers. The sentence of the Court, subject to confirmation, is that you be kept in prison for the term of seven years.

" Tanno Shozo : Yabi Jinichiro, the Court considers that your brutality was carried out under the orders of your superior officers. But you were not unwilling brutes, nor unversed in brutality. The sentence of the Court, therefore, subject to confirmation, is that you be kept in prison for the term of three years."

The Tribunal acting in the High Command Trial dealt with, inter alia, the position of a commanding officer who knows that men under his command are committing violations of International Law in pursuance of orders from his superiors passed down independently of him. While admitting the difficulty of his position, the Tribunal held that " by doing nothing he cannot wash his hands of international responsibility. His only defence lies in the fact that the order was from a superior which Control Council Law No. 10 declares constitutes only a mitigating circumstance."(3) This is
(1) See Vol. V, pp. 13, 17 and 19-22 ; Vol. VI, p. 117 ; Vol. VII, pp. 10 and 88 ; Vol. VIII, pp. 16, 20-21, 50, 52, 90 and 91-92. For an exceptional case, a type of order which the Tribunal in the High Command Trial regarded as being capable of giving rise to a complete defence, see Vol. XII, p. 98.
It is clear that the circumstances of each case will determine the extent of mitigation which the court will recognise. In this connection it may be permissible to summarise three of the possible criteria for determining the circumstances in which the plea of superior orders might be effective which were touched upon by counsel in the Masada Trial and which are set out more fully on pages 18-19 of Vol. V
(a) The degree of military discipline governing the accused at the time of the commission of the alleged offence.
(b) The relative positions in the military hierarchy of the person who gave and the person who received the order.
(c) The military situation at the time when the alleged offence was committed.
These suggested criteria demonstrate an awareness of the heavy pressure under which an accused may be acting in obeying an order, and the fact that in some circumstances a subordinate would have less opportunity to consider the legality of an order than in others. It is difficult, however, to say precisely how far such criteria as the three set out, above are followed by Courts. The International Military Tribunal at Nuremberg, commenting in its Judgment on Art. 8 of its Charter apparently had the same consideration in mind when it said : "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." (British Command Paper, Cmd. 6964, p. 42).
In the Judgment in the Milch Trial, there seems to be a recognition that, whatever the effectiveness of the plea of superior orders, such effectiveness would be greater in conditions of war-time than during time of peace. (See Vol. VII, p. 65).
(2) Not previously considered in these Volumes.
(3) See Vol. XII, pp. 74-5.


interesting as a rare example of the application of this provision to afford some protection to a person other than that to whom the order was addressed.

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