Without exception these rules universally condemn the wanton killing of non-combatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder.
Whether any individual defendant is guilty of unlawful killing is a question which will be determined later, but it cannot be said that prior to Control Council Law No. 10 there existed no law against murder. The killing of a human being has always been a potential crime which called for explanation. The person standing with drawn dagger over afresh corpse must, by the very nature of justice, exonerate himself. This he may well do, advancing self defense or legal authorization for the deed, or he may establish that the perpetrator of the homicide was one other than himself.
It is not questioned that the defendants were close enough to mass killings to be called upon for an explanation -- and to whom are they to render explanation so that their innocence or guilt may be determined? Is the matter of some one million non-military deaths to be denied judicial inquiry because a Tribunal was not standing by, waiting for the apprehension of the suspects?
The specific enactments for the trial of war criminals which have governed the Nuremberg trials, have only provided a machinery for the actual application of international law theretofore existing. In the comparatively recent Saboteurs Case (Ex parte Quirin 317 U.S., 1, 1942) the Supreme Court of the United States affirmed that individual offenders against the rules and customs of war are amenable to punishment under the common law of nations without any prior designation of tribunal or procedure. In this connection reference may also be made to trials for piracy where, going back centuries, the offenders, regardless of nationality, were always tried in the arresting state without any previous designation of tribunal.
Military Tribunals for years have tried and punished violators of the rules of land warfare outlined in the Hague Convention, even though the Convention is silent on the subject of courts. The International Military Tribunal speaking to this subject said:
"The law of war is to be found not only in treaties, but in the customs and practices of states which grad ually obtained universal recognition, and from the general principles of justice applied by jurists and prac ticed by military courts."
All civilized nations have at times used military courts. Who questions that Prussia during the Franco-Prussian war and Germany during World War I and World War II utilized military courts to try subjects of other nations charged with violating the rules and laws of war?
There is no authority which denies any belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law. And if a single nation may legally take jurisdiction in such instances, with what more reason may a number of nations agree, in the interest of justice, to try alleged violations of the international code of war?
In spite of all that has been said in this and other cases, no one would be so bold as to suggest that what occurred between Germany and Russia from June 1941 to May 1945 was anything but war, and, being war, that Russia would not have the right to try the alleged violators of the rules of war on her territory and against her people. And if Russia may do this alone, certainly she may concur with other nations who affirm that right.
Thus, Russia'a participation in the formulation of Control Council Law No. 10 is in accordance with every recognized principle of international law, and any attack on that participation is without legal support. The Tribunal also inds and concludes that Control Council Law No. 10 is not only in conformity with International Law but is in itself a highly significant contribution to written International Law.
International Law Applied to Individual Wrong-Doers Defense Counsel have urged that the responsibilities resulting from International Law do not apply to individuals.
It is a fallacy of no small proportion that international obligations can apply only to the abstract legal entities called States. Nations can act only through human beings, and when Germany signed, ratified and promulgated the Hague and Geneva Conventions, she bound each one of her subjects to their observance. Many German publications made frequent reference to these international pledges. The 1942 edition of the military manual edited by a military judge of the Luftwaffe, Dr. Waltzog, carried the following preface:
"Officers and noncoms have, before taking military measures, to examine whether their project agrees with International Law.
Every troop leader has been con fronted, at one time or another, with questions such as the following:
Am I entitled to take hostages; How do I have to behave if bearing a flag of truce;What do I have to do with a spy, what with a franctireur; What may I do as a permitted ruse of war; What may I requisition; What is, in turn, already looting and, therefore, forbidden;What do I do with a enemy soldier who lays down his arms; How should enemy paratroopers be treated in the air and after they have landed?"
An authoritative collection of German Military Law ("Das gesamte Deutsche Wehrrecht"), published since 1936 by two high government officials, with an introduction by Fieldmarshal von Blomberg, then Reich War Minister and Supreme Commander of the Armed Forces, carried in a 1940 supplement this important statement:
"The present war has shown, even more than wars of the past, the importance of disputes on International Law.
....
In this connection, the enemy propa ganda especially publicizes questions concerning the right to make war and concerning the war guilt, and thereby tries to cause confusion; this is another reason why it appears necessary fully to clarify and to make widely known the principles of International Law which are binding on the German conduct of war."
Every German soldier had his attention called to restrictions imposed by International Law in his very paybook which carried on the first page what was known as "The Ten Commandments for Warfare of the German Soldier". Article 7 of these rules provided specifically:
"The civilian populations should not be injured.
"The soldier is not allowed to loot or to destroy."
Further arguing the proposition of individual non-responsibility for their clients, several defense counsel have submitted that this trial in effect represents a trial of the victors over the vanquished. This objection dissolves so quickly under a serious glance that one wonders if it was presented reflectively. In the first place, the defendants are not being tried in any sense as "vanquished individuals" any more than it is to be assumed that a person taken into custory by police authorities is to be regarded as a "vanquished person". Wars are fought between nations as such and not between individuals as such. In war there is no legal entity such as a "defeated individual" just as there is no judicial concept of a "victorious individual". The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation. The doctrine that no member of a wronged community may try an accused would for all practical spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved.
In the fullest appreciation of the responsibilities devolving upon the Tribunal in this particular phase of the case, as in all phases, reference is made to the speech by Mr. Justice Jackson in the International Military Tribunal trial in which he said:
"We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."
What Justice Jackson said at the beginning of that trial, this Tribunal says at the termination of the current trial.
SELF DEFENSE AND NECESSITY Dr. Aschenauer, speaking for the defendant Ohlendorf and such others whose cases fall within the general pattern of the Ohlendorf defense, declared that the majority of the defendants committed the acts with which they are charged -"(a) In presumed self defense on behalf of a third party.
(Putativnothilfe is the technical term in the German legal language).(b) Under conditions of presumed necessity to act for the rescue of a third party from immediate, otherwise unavoidable danger, (so-called 'Putativnotstand')."In other words, it is claimed that the defendants in committing the acts charged to them, acted in self defense for the benefit of a third party, the third party being Germany.
In developing this theme of defense for Germany, Dr. Aschenauer insisted that this Tribunal apply his interpretation of Soviet Law. One can not avoid noting the paradox of the defendant's invoking the law of a country whose jurisprudence, ideologies, government and social system were all declared antagonistic to Germany, and which very laws, ideologies, government and social system the defendants, with the rest of the German armed forces, had set out to destroy. However, it is the prerogative of Defense Counsel to advance any argument whichhe deems appropriate in behalf of his client and the fact that Dr. Aschenauer considers Soviet Law more modern than German Law cannot fail to be interesting.
"It has thus achieved the aim which the German, reform legislation has been striving at for a long time.
Acts of necessity are unrestrictedly admissible if they are necessary for the protection of higher interests in so far as the danger could not he averted by any other means."
Under this theory of law any belligerent who is hard-pressed would be allowed unilaterally to abrogate the laws and customs of war. And it takes no great amount of foresight to see that with such facile disregarding of restrictions, the rules of war would quickly disappear. Every belligerent could find a reason to assume that it had higher interests to protect. As untenable as is such a proposition, Dr. Aschenauer goes even further:
"If the existence of the State or of the nation is directly threatened, then any citizen -- and not only those ap pointed for this purpose by the State may act for their protection."
Under this state of law a citizen of Abyssinia could proceed to Norway and there kill a Norwegian on the basis that he, the Abyssinian, was motivated only by the desire to protect his country from an assumed aggression by the Norwegian.
And that is not all:
"An error concerning the prerequisites of self defense or of an act for the protection of a third party is to be treated as an error about facts and constitutes, according to the reason for, the avoidability and also the degree of gravity of the individual error, a legal excuse or -- at the very least -- a mitigating circumstance."
Thus, if the Abyssinian mentioned above, invaded Norway out of assumed necessity to protect his nation's interest, but it developed later that he killed the wrong person, he would be absolved because he had simply made a mistake. The fact that this astounding proposition is advanced in all seriousness demonstrates how desperate is the need for a further revaluation of the sacredness of life and for emphasizing the difference between patriotism and murder.
Dr. Aschenauer does not claim that the actual circumstances supported Staatsnothilfe (defense of endangered State), but he submits that this state of affairs does not render the deeds of the defendants any less legal provided the defendants assumed that conditions existed for the application of the above-mentioned legal concepts. In support of this argument he points out what he regards the objective conditions and the subjective conditions of the German-Russian war:
"The cast European Jewish problem as part of the problem of Bolshevism;origin and import of the defendants' obsession that a solution of the prob lem 'Bolshevism versus Europe' could only be brought about by a 'solution' of the Jewish problem and in their particular sphere only be unreserved execution of the Fuehrer-Order."
Thus, even an obsession becomes a valid defense, according to this theory.
Dr. Aschenauer's legal position on assumed self defense has been discussed not because it corresponds with any accepted tenets of international law but only for the purpose of demonstrating that under any law the acts of his client and others falling in that category cannot by the widest stretch of the imagination be justified as an act of self defense in behalf of German.
Even combatants may only be killed or otherwise harmed in accordance with well-established rules. And there is nothing in the most elementary rules of warfare to permit the killing of enemy civilians simply because they are deemed "dangerous". But in killing, e.g., Jews, the defendants did not succor Germany from any real danger, or assumed danger. Although they declared that the Jews were bearers of Bolshevism, it was not explained how they carried that flag. Nor did any one attempt to show how, assuming the Jews to be disposed towards Bolshevism, this per so translated itself into an attack on Germany. The mere adherence to the political doctrine of Bolshevism did not of itself constitute an aggression or potential aggression against Germany.
It was claimed that the killing of the Jews was predicated on the circumstances of the German-Russian War, but in point of fact Jews were oppressed in Germany and German-occupied territory long prior to that war. The treatment of Jews by Germany and those representing the Third Reich did not depend on the German-Russian at all. The circumstance that Jews were living in Russia when the German forces invaded Russia was simply a coincidence which did not call for their annihilation. If merely being an inhabitant of Russia made that inhabitant a threat to Germany then the Einsatzgruppen would have had to kill every Russian, regardless of race.
If, however, it is argued by the Defense that the German forces considered as mortal enemies and subject to exeuction only those Russians who were members of the Communist party, then even according to this theory those Jews who were not members of the Communist Party should have been spared, as were those Russians who were not members of the Communist Party. The record shows, however, that when it came to a Jew, it did not matter whether he was a member of the Communist Party or not. He was killed simply because he was a Jew.
THE PRESIDENT:The presiding Judge continues with the reading of the judgment.
THE PRESIDENT:Mass killings for Ideological Reasons Dr. Reinhard Maurach, Professor Criminal Law and Eastern European Law was called by the defendant Ohlendorf to expound the international law underlying the position of the various defendants maintaining Ohlendorf's view.
Some sections o his treatise, submitted as Ohlendorf Document No. 38, supported the prosecution rather than the defense. On three occasions he condemned mass killings for ideological reasons:
"This is the place to say with special empahsis that the shooting of entire groups of a population is not justified by any 'collective suspicion', of any group, no matter how great.
"It has already been emphasized that that the issuing and execution of mass liquidation orders cannot find any justifi cation in international law, even within the scope of a total war of this kind, and in particular cannot allow of any appeal to the objective premises of self defense and emergency.
"General extermination measures cannot be justified by any war situations, no matter how exceptional."
However, in the end the expert arrived at an opposite conclusion. First he stated that a state of war as such does not vindicae extraordinary actions, but then in a superb demonstration of legal acrobatics he declared that if the war aims of one of the opponents are total, then the opponent is vindicated in claiming self defense and state of necessity, and therefore may introduce the mass killings he had previously condemned.
For the purpose of considering this argument we will ignore the fact that Germany waged an undeclared war against Russia, that Germany was the invader and Russia the invaded, and look only to the evidence adduced to support the theme that, after being invaded, Russia's actions were such as to call for the executions of which the Prosecution complains.
In behalf of the defendants many so-called Russian exhibits were introduced. Among them were documents on the Soviet Foreign Policy, statements emanating from the Kremlin, articles from the Russian Encyclopedia, and speeches made by Stalin. All these exhibits are strictly irrelevant and might well be regarded as a red herring drawn across the trail. But the Tribunal's policy throughout the trial has been to admit everything which might conceivably elucidate the reasoning of the defense. Thus, the excerpt from Stalin's speech of July 3, 1941, quoted in Ohlendorf's document book, will be cited here:
"In the areas occupied by the enemy, cavalry and infantry partisan detach ments must be formed and diversion groups created for fighting the units of the enemy army, for kindling partisan warfare everywhere and every place, for blowing up bridges and highways, for destroying telephone and telegraph connections, for burning down forests, supply camps and trains.
Unbearable conditions must be created for the enemy and all of his accomplices in the occupied areas, they must be pursued and destroyed at every step and all their measures must be frustrated.
One cannot regard the war against fascist Germany as an ordinary war.
It is not only a war between two armies.
It is at the same time the great war of the entire Soviet people against the fascist German Troops."
Scrutiny of this speech fails to reveal anything which orders the execution of German prisoners of war or the shooting of wounded persons, or the mass killing of Germans in German territory occupied by Russia, or anything which would justify the allegedly retaliatory killing of non-combatant Jews.
On of the most amazing phenomena of this case which does not lack in startling features is the manner in which the aggressive war conducted by Germany against Russia has been treated by the Defense as if it were the other way around. Thus, one of the Counsel in his summation speech said:
"However, as was the case in the campaign against Russia, when a large number of the inhabitants of this land, whether young, old, men women or child, con trary to all acts of humanity and against every provision of international law, cowardly carries on a war from ambush against the occupying army, then cer tainly one cannot expect that the pro visions of international law would be observed to the letter by this army."
No comment is here needed on the statement which characterizes the defense of one's country as "cowardly", and the other equally astounding remark that the invader has the right to ignore internaional law.
DEATH OF NON-COMBATANTS BY BOMBING Then it was submitted that the defendants must be exonerated from the charge of killing civilian populations since every Allied nation brought about the death of non-combatants through the instrumentality of bombing.
Any person, who, without cause, strikes another may not later complain if the other in repelling the attack uses sufficient force to overcome the original adversary. That is fundamental law between nations as well.
It has already been adjudicated by a competent tribunal that Germany under its Nazi rulers started an aggressive war. The bombing of Berlin, Dresden, Hamburg, Cologne and other German cities followed the bombing of London, Coventry, Rotterdam, Warsaw and other Allied cities; the bombing of German cities succeeded, in point of time, the acts discussed here.
But even if it were German cities without Germans having bombed Allied cities, there still is no parallelism between an act of legitimate warfare, namely the bombing of a city, with a concomitant loss of civilian life, and the premeditated killing of all members of certain categories of the civilian population in occupied territory.
A city is bombed for tactical purposes: communications are to be destroyed, railroads wrecked, ammunition plants demolished, factories razed, all for the purpose of impeding the military. In these operations it inevitably happens that non-military persons are killed. This is an incident, a grave incident to be sure, but an unavoidable corollary of battle action. The civilians are not individualized. The bomb falls, it is aimed at the railroad yards, houses along the tracks are hit and many of their occupants killed. But that is entirely different, both in fact and in law, from an armed force marching up to these same railroad tracks, entering those houses abutting thereon, dragging out the men, women and children and shooting them.
It was argued in behalf of the defendants that there was no normal distinction between shooting civilians with rifles and killing them by means of atomic bombs. There is no doubt that the invention of the atomic bomb, when used, was not aimed at non-combatants. Like any other aerial bomb employed during the war, it was dropped to overcome military resistance.
Thus, as grave a military action as is an air bombardment, whether with the usual bombs or by atomic bomb, the one and only purpose of the bombing is to effect the surrender of the bombed nation. The people of that nation, through their representatives, may surrender and, with the surrender, the surrender, the bombing ceases, the killing is ended. Furthermore, a city is assured of not being bombed by the lawabiding belligerent if it is declared an open city. With the Jews it was entirely different. Even if the nation surrendered they still were killed as individuals.
It has not been shown throught this entire trial that the killing of the Jews as Jews in any way subdued or abated the military force of the enemy, it was not demonstrated how mass killings and indiscriminate slaughter helped or was designed to help in shortening or winning the war for Germany.
The annihilation of defenseless persons considered as "inferior" in Russia would have had no effect on the military issue of the war. In fact, so mad were those who inaugurated this policy that they could not see that the massacre of the Jews in many instances actually hindered their own efforts. We have seen in the record that occasionally German officials tried to save Jews from extinction so that they could be forced to work for the German war effort. This would have been another war crime but at least it would not have been so immediately disastrous for the victims.
The Einsatzgruppen were out to kill "inferiors" and, first of all, the Jews. But in the documentation of the war crimes trials since the end of the war, no explanation appears as to why, from the viewpoint of the Nazis, the Jew ad to die. In fact, most of the defendants in all these proceedings have expressed a great regard for the Jew. They assert they have admired him, befriended him, and to have deplored the atrocities committed against him. It would seem they were ready to help him in every way except to save him from being killed.
The Einsatzgruppen were told at P*etzsch that "the Jews" supported Bolshevism, but there is no evidence that every Jew had espoused Bolshevism, although, even if this were true, killing him for his political belief would still be murder. As the Einsatzkommandos entered new cities and towns and villages they did not even know where to look for the Jews. They could not even be sure who were Jews. Each Einsatzkommando was equipped with several interpreters, but it became evident throughout the trial that these invading forces did not carry sufficient linguistic talent to cope with the different languages of the States, provinces and localities through which they moved. There can be no doubt that because of the celerity with which the order was executed countless non-Jews were killed on the supposition that they were Jews.
Frequently the only test applied to determine Judaism Was that of physiognomy.
One either justifies the Fuehrer-Order or one does not. One supports the killing of the Jews or denounces it. If the massacres are admitted to be unsupportable and if the defendants assert that their participation was the result of physical and moral duress, the issue is clear and it becomes only a question of determining how effective and oppressive was the force exerted to compel the reluctant killer. If, however, the defendants claim that the killing of the Jews was justified, but this claim does not commend itself to human reason and does not meet the requirements of law, then it is inevitable that the defendants committed a crime.
It is the privilege of a defendant to put forth mutually exclusive defenses, and it is the duty of the court to consider them all. But it is evident that the insistence on the part of the defendants that the massacres were justified because the Jews constituted an immediate danger to Germany inevitably weakens the argument that they acted only under duress exerted on them personally; and in turn, the "personal duress" argument enfeebles the "danger to Germany" argument. In two or three instances an attempt was made to show that the Jews in Russia held a high percentage of official positions, a percentage disproportionate to the size of the Jewish population. This was the most common theory utilized in Germany for the oppression and persecution of the Jews. By adducing the same excuse here the defendants involved acknowledged they were putting into physical effect in Russia an antipathy and prejudice already entertained in Germany against the Jewish race. There was no duty and certainly no right on the part of the defendants to go into Russia to equalize the official positions according to the proportion between Jews and non-Jews.
Defense Counsel Dr. Mayer admitted that the Fuehrer-Order violated the recognized laws and customs of war, but urged that Russia was not entitled to protection under international law.
Apart from the fact that Russia was a party to the Hague Convention of Land Warfare -- in fact, the Hague conference of 1899 was initiated by Russia -- the International Military Tribunal pointed out that the rules of the Hague Regulations have become delcaratory of the Common Law of War. It further disposed of the objection by quoting approvingly from the memorandum issued by the German Admiral Canaris on September 15, 1941, in which he declared that it is contrary to military tradition, regardless of treaty or lack of treaty -
"To kill or injure helpless people."
Dr. Mayer also said, taking the same line as Dr. Maurach:
"If this war was not an unjustified war of aggression, but a justified preventive war, then, on the basis of my explanations in the Trial Brief on the subject of the ideology, aims and practice of the USSR, to which I refer, the question arises, in how far the German Reich found itself, in this war against the USSR, in a genuine state of national emergency, and whether this justified the orders given by Hitler."
If Dr. Mayer means this, he collides head-on with a res judicata. The International Military Tribunal, after studying countless documents and hearing numerous direct witnesses of and participants in the event itself, declared:
"The plans for the economic exploita tion of the USSR, for the removal of masses of population, for the murder of Commissars and political leaders, were all part of the carefully prepared scheme launched on the 22nd June without warning of any kind, and without the shadow of legal excuse.
It was plain aggression."
The annihilation of the Jews had nothing to do with the defense of Germany, the genocide program was in no way connected with the protection of the Vaterland, it was entirely foreign to the military issue. Thus, taking into consideration all that has been said in this particular phase of the defense, the Tribunal concludes that the argument that the Jews in themselves constituted an aggressive menace to Germany, a menace which called for their liquidation in self defense, is untenable as being opposed to all facts, all logic and all law.
THE PRESIDENT:New headings.
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 captian 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 cinfonement.
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 vary ing 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 Saxonia 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:
"Art. 158: A subordinate who does not carry out an order is not guilty of a violation of his duty of subor dination if:
(a) the Order is obviously con trary 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 of fense is to be recognized."
In 1972 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:
"Art, 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 mili tary 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 situa tion 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 declara tion by the Chief of State of the German Empire at the time, the military situation made it necessary for you -- after receiv ing 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 isued 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 obedi ence 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 ot 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 par ents.
Now, it is established beyond any doubt that this Jewish father and Jewish mother have not committed any crime -absolutely guiltless, belmishless.
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 militaryily 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 Mlitary 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?
THE PRESIDENT:Judge Speight will continue with reading of the judgment.
JUDGE SPEIGHT:Subject:
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 nay 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.