. NMT04-T0470
Volume IV · Page 470
| 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. |
| 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 |
