. NMT04-T0480
Volume IV · Page 480
| Concentration camp Auschwitz had to furnish continuously Jews for this Kommando." |
| Duress Needed for Plea of Superior Orders |
| But it is stated that in military law even if
the subordinate realizes that the act he is called upon to perform is a crime,
he may not refuse its execution without incurring serious consequences, and
that this, therefore, constitutes duress. Let it be said at once that there is
no law which requires that an innocent man must forfeit his life or suffer
serious harm in order to avoid committing a crime which he condemns. The
threat, however, must be imminent, real, and inevitable. No court will punish a
man who, with a loaded pistol at his head, is compelled to pull a lethal lever.
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 led, step by step, |
