"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 the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But, this case was precisely on of them. For in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of law. As naval officers by profession they were well aware, as the naval expert, Saalwachter, has strikingly stated, that one is not legally authorized to kill defenceless people. They quickly found out the facts by questioning the occupants in the boats when they 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"" (1 - Amn 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 soldiers duty. No soldier or officer attempting to escape from such a task would be pleading avoidance of 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 men 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.
In his attack on Control Council Law No. 10, Dr. Mayer declared that it invalidates two fundamental principles of the legal system of all civilized nations:
"(1) The principle: nulla poena sine lege.
(2) Validity of the excise of having acted under order."
The Tribunal has already disposed of objection number 1. Objection number 2 is no more convincing that was objection number 1. Law No. 10 does not invalidate the excise 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. 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 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 on 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 that 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 paragraph 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 order 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 applied 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 the 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 2nd 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 a 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 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 has 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 is 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, Vol. 21, p. 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 guards in applying the criteria herein announced in the discussion of the subject of Superior Orders.
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. 94 - 100 (original mimeographed copy)