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Volume IV · Page 486
"(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. If, however, the act is a crime then there can
be no excuse 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 the 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 one 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 this 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 article 347 of the American Rules of Land Warfare in support of their position on superior orders. |
