. NMT04-T0488
Volume IV · Page 488
| it was still law at the time the
Einsatzgruppen were operating. In further confirmation of the interpretation above given of Article 347, reference is made to Article 64 of the American Articles of War which announces punishment for the disobedience of any lawful command of a superior officer. Obviously if the order is unlawful he may not be punished for refusing to obey it. The subject of superior orders is not so confusing and complicated as it had been made by some legal commentators. In considering the law in this matter, we must keep in mind that fundamentally there are some legal principles that stand out like oak trees. Much underbrush has grown up in the vicinity and they seem to confuse the view. But even the most casual observation will catch on the legal landscape these sturdy oaks which announce that — 1. Every man is presumed to intend the consequences of his act. 2. Every man is responsible for those acts unless it be shown that he did not act of his own free will. 3. Deciding the question of free will, all the circumstances of the case must be considered because it is impossible to read what is in a man's heart. Dr. Aschenauer correctly referred to one of these trees in Lord Manfield's charge to the jury in Stratton's case (1780) Howell, State Trials, Volume 21, page 1062-1224 — |
"A state of emergency is a reason for justification, since nobody can be guilty of a crime without having intended it. If there is irresistible, physical duress, then the acting person has no volition with regard to the deed." |
| Was there irresistible, physical duress? Was there volition with regard to the deed? The answering of these two questions will serve as safe guides in applying the criteria herein announced in the discussion on the subject of superior orders. |
| Noninvolvement |
| Several of the defendants pleaded not guilty on the ground that they were in no way involved in the homicidal operations of the Einsatz units. These denials of participation took various forms. It was stated that the defendant, although traveling with the Kommando, never learned of executions and certainly did not participate in them, it was asserted that, although the defendant participated in executions, the executees were partisans, saboteurs, looters, and the like; and it was also claimed on behalf of some of the defendants that, although they actually ordered and supervised executions, these executions always followed an |
