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 lead, 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 January 30, 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. It would be enough, in order to escape the 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 extent. 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 the 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 possible exceptions, and I did not see any possibility."
One may accuse the Nazi military hierarchy of cruelty, even sadism, if one will. But it may not be lightly charged with inefficiency. If any of these kommando 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 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 Hartl 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 the
work 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 Hartl 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 clashed with his superiors. If one concentrated only on this latter phase of the defense on would conclude that these defendants were all ardent rebels against National Socialism and valiantly fought against the inhuman proposals put to them. Thus, one affiant says of the defendant Willy Seibert that he "was strongly opposed to 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 shortcomings of 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 Kommissar 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.
Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 89 - 94 (original mimeographed copy)