“The Nuernberg judgment expresses astonishment, nay indignation at the objection raised by the defendants on the grounds that they had acted on higher orders, and accuses them of duplicity, not to say, dishonesty. ‘Many of these men,’ so runs the verdict, ‘have made a mockery of the soldier’s oath of obedience to military orders. If it is more advantageous for their defense, they say they were forced to obey orders; if one reproaches them with Hitler's crimes, having established the fact that these were a matter of general knowledge, they say they refused to obey orders.’ And yet this conduct can be justified not only on ethical but also on legal grounds, which can be recognized if one places oneself in the position of the recipient of the orders. Let as assume that his first reaction is to resolve, regardless of personal danger, to refuse to carry out the order. He then reflects on the consequence of such an action and becomes convinced — and rightly so — that someone else who will obey the order without further ado will replace him in the position which he vacates. He now resolves to remain at his post: if he cannot prevent the execution of the order, he can at least lessen its effects and limit the amount of harm done by it. In other words, the conflict of duties, given the choice between two evils, the lesser involving active cooperation, and the greater involving merely passive acquiescense, resolves itself by choosing time lesser of the evils. It is true to say of this case also that there is no choice which admits of the complete avoidance of wrong; the recipient of the orders has only the choice between two evils, and his choice of the lesser can be no grounds for reproach.” 

“that greater moral courage is often required to remain at one’s post and to cooperate in the execution of orders, while striving to restrict the effect of such orders, and that much harm was prevented by such conduct on the part of men of principle under National Socialist domination. Legal opinion must not he allowed to overlook this fact. Moreover we must refrain from raising the objection that this evil could have been completely eliminated had all subordinate officials refused to obey orders. We are not concerned here with the collective guilt of an entire class, but with the criminal liability of the individual, and the judgment of such criminal liability must accept as its starting point the, fact that the possibility of