. NMT05-T0289
Volume V · Page 289
| if one were to assume for oneself the right
of defining the existence of say, an "inhumane act," because an "inhumane act"
is a word for a moral quality or lack of quality, and not an objective case
founded on facts. Furthermore, it would again be contrary to ethics and
generally accepted legal principles appertaining to criminal law if today one
were to find somebody guilty in retrospect because he has violated a law which
at the time of the perpetration of the act was not even in existence, not to
speak of being punishable. On the contrary, perhaps the act which today is
unlawful and punishable was at that time explicitly ordered by the state.
5. At this time I must also discuss the question of the legitimate order by a superior. Already from the Roman law to the modern law of today of all civilized countries a legitimate order by a superior exempts the perpetrator from guilt. He whose will is bound by a valid order is not legally responsible in the eyes of criminal law, because the will of the one who gives the order supersedes the will of the obeying. If the order is unlawful, criminal, and appears so to the obeying party, but only then responsibility in the eyes of criminal law of the obeying party can be considered. Otherwise as a matter of fairness and humanity the duty of a soldier to obey must be respected. The defendant Hermann Pook, too, was a soldier and was subject to the provisions of the German Military Criminal Code. Of course, one should not and must not attempt to justify every war crime by the fact that it was ordered from above, but on the other hand one cannot disregard the fact that as a general rule the soldier is entirely wrapped up in the army mentality and that with the increasing war hardships the confusion of the soldier also increases and his ability of moral criticism decreases. This is the reasoning of an ancient author. When the Control Council Law No. 10 prescribes: The fact that a person acts under orders of his government or his superior does not absolve him of the responsibility for a crime; it can, however, be regarded as a mitigating circumstance, it is thereby unquestionably not intended that the subordinate is automatically responsible in the eyes of criminal law; this would be contrary to all legal principles. Obviously only the burden of proof is thereby put on the subordinate; it is up to him to prove to what extent he is not responsible; for instance, that he was unable to recognize the order as unlawful and criminal. If he cannot exonerate himself in accordance with general principles of law, the order by the superior can still be considered as mitigating circumstance. The defendant Hermann Pook was drafted into the Waffen SS |
