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Volume IV · Page 339
| work he declares that violations
of the laws of war are only crimes if they have been committed without the
order of the belligerent government. He is of the opinion that members of
the armed forces who commit violations of law at the command of their
government are not war criminals and, therefore, cannot be punished by the
enemy. In such cases, he grants the enemy only the right to resort to
reprisals.¹ Lauterpacht, who brought out Oppenheim's work in 1940, after the latter's death, was the first to abandon this opinion. This view of Professor Lauterpacht, however, has found no concurrence elsewhere in legal literature. It has been particularly attacked by Professor Kelson in his work "Peace through Law", page 98, and described as more than questionable. From these statements, it appears that accepted international law is solely and alone decisive in deciding the question whether the appeal to a superior order is admissible in this trial and that according to international law the appeal to the superior order is a reason for justification and exoneration from guilt. |
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| b. Justification of the Hitler Order | |
| PARTIAL
TRANSLATION OF OHLENDORF DOCUMENT 38 OHLENDORF DEFENSE EXHIBIT I |
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| EXTRACTS FROM
EXPERT LEGAL OPINION PRESENTED ON BEHALF OF THE DEFENSE BY DR. REINHARD MAURACH |
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| EXPERT LEGAL
OPINION PRESENTED ON BEHALF OF THE DEFENSE BY DR. REINHARD MAURACH² PROFESSOR OF CRIMINAL LAW AND EAST EUROPEAN LAW |
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| Table of Contents | |
| Introduction: Subject and
outline of the expert opinion A. The Law to be applied. 1. The so-called General Part of Law No. 10. 2. What system of law is to be used as "General Part" of Law No. 10. |
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¹ Oppenheim, International Law, par. 263: "Violation of rules regarding warfare", writes this eminent jurist, "are crimes only when committed without an order of the belligerent Government, they are not war criminals and cannot be punished by the enemy: the latter may, however, resort to reprisals".
² Originally called as witness by the defense; by agreement of prosecution and defense this legal opinion was submitted in lieu of oral testimony.
