. NMT04-T0487
Volume IV · Page 487
| The section in question, after listing various offenses against the rules of warfare, declares — |
" * * * Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall." |
| What has escaped some analysts of this
provision is that the word "individuals" is intended to apply to individuals
who make up a military unit, that is, ordinarily, soldiers of lower rank. It
applies naturally also to officers, but only provided they are serving under
another officer of a higher rank. Unless one accepts this meaning the word
"commanders" appearing in his second sentence would be entirely elusive as to
its significance. But it is to be noted that in square juxtaposition to the men
(and perhaps officers) who make up the military unit, the Article puts the
commanders of such units; and by "commanders" is obviously meant the
officers or acting officers, in charge of any armed unit. As the colonel is commander of a regiment, the major of a battalion, and the captain of a company, the sergeant or 2d lieutenant may be in charge of a platoon. If the unit commander were not responsible, and the responsibility climbed upward from grade to grade, the result would be that the only one who could ever be accountable for an illegal order would be the chief executive of the nation, that is, the President, King, or Prime Minister, depending on the country involved. That such singular responsibility was not intended is evidenced in the use of the plural "commanders" instead of the singular "commander". Making this meaning absolutely clear, the provision specifically mentions two types of "commanders" who are to be held responsible — |
(a) commanders who order their units to commit war crimes; and |
| Thus, the provision proclaims clearly that
the commander is to be responsible — whether he gives the order to
commit war crimes, or whether the troops under his authority commit them at the
behest of somebody else, since he has the control over the troops and is
responsible for their acts. Since it has not been denied that the defendants were commanders of Einsatz units, they clearly would fall within the provisions of Article 347, American Rules of Land Warfare. This Article 347 was repealed in 1944, but it has here been discussed at length because defense counsel made much of it, and because |
