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220. Here we shall add that, in civilized countries the
rejection of the defence of `superior orders' as exempting
completely from criminal responsibility, has now become
general.  This was also acknowledged by the General Assembly
of the United Nations, being one of the principles of the
London Charter and of the judgment in the case against the
Major War Criminals (Resolution of the Plenary Session, No.
55, dated 11.12.46).  Perhaps it is not a vain hope that the
more this conviction becomes rooted in the minds of men, the
more will they refrain from following criminal leaders, and
the rule of law and order in the relations between nations
will be strengthened accordingly.

It is to be pointed out here that even the jurists of the
Third Reich did not dare to put on paper that obedience to
orders is above all.  They did not repeal Section 47(2) of
the German Military Criminal Code, which states that whoever
commits an offence against the Criminal Law, through
obedience to a superior's order, is punishable as an
accomplice to a criminal act, if he knew that the order
concerned an act which is a crime or an offence according to
the general Military Law.  This provision was applicable
also to SS men, according to the laws of jurisdiction over
them (see exhibit T/1402/a, pp. 15, 21-22).
221. Of course, the Accused well knew that the order for the
physical extermination of the Jews was manifestly illegal,
and that by carrying out this order he was committing
criminal acts on an enormous scale.  To arrive at this
finding, we do not have to rely on the Accused, because
according to Section 19(b) the question as to whether an
order is manifestly illegal is a question of law, left to be
decided by the court according to objective criteria.  In
any case, we shall also quote his evidence in the matter,
which he gave after much evasion, and as though it needed a
great inner effort on his part to realize such a simple

     "Your Honour, President of the Court, since you call
     upon me to tell and give a clear answer, I must declare
     that I see in this murder, in the extermination of
     Jews, one of the gravest crimes in the history of

And in answer to Judge Halevi:

"...I already at that time realized that this solution by
the use of force was something illegal, something terrible,
but to my regret, I was obliged to deal with it in matters
of transportation, because of my oath of loyalty, from which
I was not released." (Session 95, Vol. IV, pp. xxxx35-36)

Not only the order for physical extermination was manifestly
illegal, but also all the other orders for the persecution
of Jews because of their being Jews, even though they were
styled in the formal language of legislation and subsidiary
legislation, because these were only a cloak for arbitrary
discrimination, contrary to the basic principles of law and
justice.  As was stated by the court at Nuremberg which
tried the Nazi jurists (Justice Case) (Green Series, vol. 3,
p. 1063):

     "...but it is alleged that they participated in
     carrying out a governmental plan and program for the
     persecution and extermination of Jews and Poles, a plan
     which transcended territorial boundaries as well as the
     bounds of human decency.  Some of the defendants took
     part in the enactment of laws and decrees, the purpose
     of which was the extermination of Poles and Jews in
     Germany and throughout Europe.
     "The overt acts of the several defendants must be seen
     and understood as deliberate contributions towards the
     effectuation of the policy of the Party and state.  The
     discriminatory laws themselves formed the subject
     matter of war crimes and crimes against humanity with
     which the defendants are charged."
This was not a single crime, but a whole series of crimes
committed over the years.  The Accused had more than enough
time to consider his actions and to desist from them.  But
he did not stop; as time went on, he even increased his

222. By what we have said up to now, the Accused's attempt
to rely on superior orders for the justification of his
acts, or even in mitigation of his punishment according to
Section 11 of the Law, is already untenable.  Since the
order was manifestly illegal, they cannot be used as an
excuse.  Yet, we shall continue to examine what was the
Accused's attitude  to the orders within the framework in
which he acted: Did these orders disturb his conscience, so
that he acted under compulsion from which he saw no escape;
or did he act with inner indifference like an obedient
automaton; or perhaps, in his heart, he identified with the
contents of the order.  Although this makes no difference as
regards the conviction of the Accused, yet it is important
to examine these questions, in order to define the measure
of the Accused's moral responsibility for his acts.  For
this reason, the Attorney General rightly requested that we
draw our conclusions already at this stage from the evidence
before us, in answer to this question as well.

223. What is in fact the Accused's version on this matter?
He was verbose before this Court and in his statements
outside the Court, but when all is said and done, we do not
see in his words a clear consistent version.  Besides the
repetition of his statement that he acted according to
orders, and that the oath of loyalty which he had taken as
an SS man and an SD man strengthened even further his
absolute duty to obey any order given to him, he keeps on
saying that until a certain time he was carrying out his
duties willingly and with inner satisfaction.  It was thus,
he said, as long as he was working at the Central Offices
for Jewish Emigration in Vienna and Prague, for in this he
saw work beneficial to both sides - his side and the Jewish
side.  This, too, was his attitude to the Madagascar Plan,
on which he laboured so much, for also this was still a
"political solution."  But when this plan was also shelved,
his world crumbled around him and his attitude to his work
changed from one extreme to the other.  He lost interest in
his work and decided that in the future he would act as an
ordinary official, obeying instructions and no more.  Thus
far the version is more or less clear.  From here onwards
the picture becomes more and more blurred.  How does he
describe his reaction to the horrifying sights he saw from
time to time with his own eyes during his visits to the
East: the mass slaughter of Jews - men, women and babies;
the shooting on the brink of the pits; the blood spurting
from a mass grave; the loading of Jews into the gas vans in
Chelmno; the cremation of bodies there; the transport of
Jews into the gas chambers?  This is what he said, quoting
his own words to Mueller on his return from such a journey:

     "`Terrible, I tell you, the inferno, this I cannot
     bear,' I told him.  (T/37, 177)
     "`Please don't send me to that place.  Send someone
     else, send someone more robust (Jemand robusteren).
     Look, I have never been allowed to go to the front.  I
     was never a soldier... They do not collapse.  I cannot
     watch it.' I said, `I cannot sleep at night! I have
     dreams - I cannot carry on this way, Gruppenfuehrer.'"

Elsewhere in his Statement to Superintendent Less he
explains his desire to be transferred to another post,
giving as additional reasons his chances for promotion and
his lack of interest in police work as such from the very
beginning, from the time of his transfer to Berlin in the
year 1939 (T/37, p. 250).

And also in his evidence, in answer to the Attorney General
(Session 94, Vol. IV, pp. xxxx13-14):

     "I referred to him [Mueller] with such a request for
     the first time and asked not to be transferred to
     Berlin at all, because I wanted to remain where I lived
     with my family.  I sent in a second urgent request and
     told him I would not be able to stand this physically,
     after the service trip to the East, the first trip, and
     later on I applied after each trip.  Mueller was aware
     of my state of mind at the time after such a trip."

224. It is therefore clear that, according to his
contention, he requested a transfer to another job for
reasons of convenience, to obtain promotion, and also,
according to his own words, because physically he was not
robust enough to bear all the horrifying sights with which
he was confronted in the East.  But there is not one word
here about inner revulsion against the extermination of Jews
for reasons of conscience.  True, when pressed by the
Attorney General, who asked,

     "And you did not mind acting as the great transporter
     to death?"

his answer is:

     "I did mind, I minded very much - more than anyone can
     imagine.  That is why, from time to time, I requested
     my superior, and repeated my request, that he find me
     another task." (Session 94, Vol. IV, pp. xxxx11-12)

225. But this version - that he asked to be relieved of his
post for reasons of conscience - is contradicted by the
Accused himself.  When his Counsel asks him,

     "It does seem that, from the remarks in the
     reminiscences taken down by Sassen, as well as now, you
     were quite satisfied with the Conference [the Wannsee
     Conference].  Can you express your opinion about this?"
     (Session 79, Vol. IV, p. xxxx2)

then his answer is:

     "Yes, but the origin of my satisfaction is to be sought
     in another direction, not in that of Heydrich's
     "And so, after many efforts [to find other solutions],
     after the Wannsee Conference I could say to myself
     that, in spite of my wish, and not due to my own
     preparations, through no fault of mine, and having the
     feeling of a Pontius Pilate washing his hands, I could
     feel that the fault was not mine.  But at this Wannsee
     Conference, the men at the top, the elite, the popes of
     the empire, laid down the line to be followed.  And I?
     I had only to obey."

It should be remembered that even before the Wannsee
Conference he had already seen what was happening in the
East and had begun deporting Reich Jews to the slaughter;
yet, in spite of this, according to his testimony here, he
feels like a Pontius Pilate, that is, like a man who could
find a way of soothing his conscience.  And this, in fact,
is his basic contention: that the order sets his conscience
free; that blind obedience, according to an oath of loyalty,
comes first and stands above all, and that against this
obedience the voice of one's conscience cannot even make
itself heard.  Dr. Grueber, the German priest, one of the
righteous men of this world, who because of his activities
on behalf of persecuted Jews was himself thrown into a
concentration camp, described before us this type of the
German mercenary, the "Landsknecht":

     "A German Landsknecht, the minute he dons his uniform,
     doffs his conscience; it is said that he deposits them
     in the cloakroom." (Session 41, p. 737)

And here, in the evidence of the Accused, is the argument in
all its nakedness:

     "...responsibility and the matter of conscience lie
     upon the heads of the state." (Session 88, Vol. IV, p.
Later, when cross-examined by the Attorney General, he
retreats somewhat from this extreme position and clings to
the most miserable of excuses (Session 95, Vol. IV, pp.
     "In my opinion, to break an oath of loyalty is the
     worst crime and offence that a man can commit.
     "Q. A crime greater than the murder of six million
     Jews, amongst them one and a half million children, is
     that correct?
     "A. Not that, of course.  But I was not occupied in
     extermination.  Had I been occupied in exterminating,
     had I been ordered to deal with extermination - I
     believe that I would have committed suicide by shooting

This answer calls to our mind matters in the same spirit
which he noted in his remarks to the article in Life
magazine, in connection with the activity of Section IVB4:

     "We had nothing to do with the atrocities, we went
     about our affairs in a decent way." (T/51, second

That is, had he been ordered to throw the gas container
amongst the victims, then his conscience would have woken
up, but since it was his duty to hunt down the victims in
the countries of Europe and transport them to the gas
chambers, his conscience was at peace, and he obeyed orders
without hesitation.

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