Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-07 Last-Modified: 1999/06/15 15. Counsel for the Appellant coupled with the contention of `Act of State' also that of `obedience to superior orders.' He contended that it was the oath of allegiance taken by his client on joining the SS organization, and the compulsion of Hitler's order to destroy the Jews completely - an order which was passed on to him through that organization's chain of command and was given to him by his superior - by which he was guided in acting as he did. For the present we shall deal with this submission only from the legal point of view; our principal object will be to distinguish it from the `Act of State' contention on the one hand, and to clarify its meaning and significance from the viewpoint of international law on the other: (a) The defence of `obedience to superior orders' differs from that of `Acts of State' in the following three respects: (1) While the latter defence means that the criminal act cannot be imputed to the person who committed it, but only to the state, the former signifies that he may indeed be regarded, even legally, as the doer of the act, but that the fact of his having acted under the compulsion of an order of the competent authority, to whom he was directly subordinated, is his justification. (2) While the `Act of State' theory regards the performance of the mission in question as being of this character only because the supreme authority in the state ("the Heads of State" etc.) commanded or authorized it (Kelsen op. cit., p. 104), this does not necessarily apply to the theory of `superior orders,' which justifies the criminal act solely because the immediate superior of the perpetrator of the act ordered him to carry it out, and the latter was bound to obey such order. (3) `Act of State' does not necessarily mean that the person who performed the mission acted under a ministerial direction, which left him no margin of discretion, but it is rather the fact that the act performed was within the scope of the authority given which suffices to vest it with that character. On the other hand, the defence that the act was done in obedience to superior orders means - ex hypothesi - that the person who performed it had no alternative - either by law or by virtue of the regulations of the disciplinary body (army, etc.) of which he was a member - but to carry out the order he received from his superior. It should be noted that we have not as yet dealt with the legal value of the defence in question, but have only dwelt on the differences existing between it and the other defence advanced. The third difference makes it clear that the `superior orders' doctrine cannot, by its very nature, avail the Appellant because, when we come to analyse the facts, it will be found that within the framework of the order to carry out the Final Solution, the Appellant acted independently, and even exceeded the tasks assigned to him through the service channels of the official chain of command (see paragraphs 16-18 of Part III of this Judgment.) (b) The question whether the public interest requires that the defence of `superior orders' be recognized, raises the following two difficulties. On the one hand, the purpose of ensuring good order in the disciplinary body to which the accused belongs necessitates that he should not disobey his superior officer and should not stop to ponder the legality of the command he received, lest the object for which he was ordered to act be foiled. On the other hand, the damage that will be caused to the public by the offence involved in carrying out the order demands that he should not obey it automatically, but should do so only if reasonably convinced that the order was lawful. These two conflicting aspects have been aptly summarized by Stephen in his History of Criminal Law in England (vol. 1, p. 206): "The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of the double necessity of preserving, on the one hand, the supremacy of the law, and on the other, the discipline of the army." There is also the personal problem of the soldier himself when placed in the dilemma that, if he disobeys the order of his commanding officer, and it later turns out to have been lawful, he will be brought before a court-martial, whereas if he obeys it, and it later transpires that this was not the case, he will be liable to punishment under the general criminal law. This difficulty is likely to be grave, in view of the fact that the simple soldier is not always capable of deciding on the spot whether the order given was lawful or not: "It is not easy for any man, still less for the poorly educated soldier, to decide whether an order addressed to him is reasonably necessary for quelling a disturbance... To make matters worse for him, he is subject to two different jurisdictions" (Glanville Williams, The Criminal Law etc., 2nd ed., p. 297). All three difficulties show that the problem whether it is proper to recognize this defence depends on the answer to the question if, and to what extent, the mental state of the accused at the time of the offence ought to be taken into consideration, namely, the fact that he did not then know that the order he carried out was contrary to the law. The via media solution provided by the general Criminal Law of this country - in accordance with the tendency of English law (ibid., pp. 297, 298) - is that such defence is admissible where there was obedience to an order not manifestly unlawful (section 19(b) of the Criminal Code Ordinance 1936; see also the passages from Israeli cases, quoted in paragraph 219 of the Judgment). However, in Section 8 of the Nazis and Nazi Collaborators (Punishment) Law, the legislature has provided that the defence of "superior orders" - and the same applies to the defences of "constraint" and "necessity" - shall not be admissible with respect to the offences covered by the Law; while in Section 11, the legislature has provided that it is permissible, in certain circumstances to consider it as a factor in mitigation of sentence. We certainly agree with the view of the District Court that, even if it had to decide the case on the basis of the provision in the general Criminal Law, it would have had to reject that defence, not only because the order for physical extermination was manifestly unlawful, and also all other orders to persecute the Jews were contrary to the "basic ideas of law and justice," but also because the Appellant was fully conscious at the time that he was a party to the perpetration of the most grave and horrible crimes. Indeed, in paragraph 221 of the Judgment, the Court has set out the testimony of the Appellant in which he himself admitted this fact: "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 the Jews, one of the gravest crimes in the history of mankind." 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). 2(c) Thus far we have dwelt principally on the theoretical aspect of the defence in question - on the distinction between it and the `Act of State' defence, and on the attitude adopted towards it by the legislature. We now wish to reply to the question as to whether the particular attitude taken by the legislature in Section 8 of the 1950 Law which precludes the application of the `superior orders' defence to the crimes defined in the Law, conflicts with the principles of international law. 2(1) Our first reply to this question is that until World War II there was no agreed rule in the law of nations, by which recognition was given to the defence of `superior orders,' not even with respect to the charge of committing an act contrary to the laws of war. See: Stone op. cit., p. 362; Schick, A.J.I.L., vol. 41, p. 793; Wright, History of U.N. War Crimes Commission (1948), p. 274. 2The solutions given in regard to the question whether such defence should at all be admissible - and, if so, to what extent may be taken into account the accused's knowledge or ignorance of the unlawful character of the order or the fact that he was bound to know of it - have varied from state to state. This is not the place to deal with them at length (see the review of Greenspan, pp. 490 ff; also Wright, ibid., p. 281 ff). We may, however, mention the principle embodied in the British and American Military Codes of 1914 which laid down that a superior order shall serve as a defence for a member of the armed forces who committed a war crime in obedience to it, and that the commanding officer responsible for such order shall alone be criminally responsible for the former's act. This is the principle known as respondeat superior, and it conflicted with the provisions of the general criminal law which was then in force in those countries and was, moreover, not in harmony with the decisions of their courts. In 1944 Glueck (see his book, pp. 149-150) wrote that the legal position on this issue had not yet crystallized there. It is true that a little later the above military codes were amended, and the principle was laid down that a superior order, under which a member of the armed forces acted in contravening the laws of war, would not confer upon him absolute immunity from punishment, but that the court could take such defence into consideration, if the order was not obviously unlawful (British amendment). It is also pertinent to add that the provision in German law of the last century, which the Nazis maintained intact, imposed liability for a breach of the criminal law committed by a person, while acting in obedience to an order given him by his superior, on the latter alone, but at the same time it specified that the first-mentioned person shall be punished as an accomplice, if he knew that the order concerned an act that aimed at a crime or an offence under the general or the military law. (Article 47(2) of the German Military Law of Criminal Jurisdiction of 1882, cited in paragraph 220 of the Judgment). That provision appears to have prescribed a sort of subjective test as to the admissibility of the `superior orders' defence, but in its judgment in the Llandovery Castle case, in which it tried the charge of a war crime committed in World War I, the Supreme Court of Germany in Leipzig held, in 1921, that the accused shall be deemed to have had knowledge of the unlawful character of the order he carried out "if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law... In the present case it was perfectly clear to the accused that killing defenceless people in the lifeboats could be nothing but a breach of law." (Quoted from the judgment in U.S. v. Ohlendorf L.R.T.W.C., vol. 4, p. 484). We have made passing reference to this test because it, too, entails that full criminal intent be attributed to the Appellant even had he not admitted this fact in his evidence. But our main purpose here is to make it clear that in the past no principle recognizing such defence became crystallized in international law. 2(2) There was thus no departure from the provisions of international law - and this will be our second reply to the above question - when in Article 8 of the Charter of the International Military Tribunal it was provided, with respect to the crimes defined therein, that the fact that the accused acted pursuant to an order of a superior shall not free him from responsibility, but the Tribunal may take it into consideration in mitigation of punishment, should it determine that justice so requires. It must be understood that this express provision was designed to defeat in advance any attempt by the Nazi criminals to resort to the respondeat superior plea to the point of carrying it ad absurdum, in view of the Fuehrerprinzip which, in the last analysis, made it possible to trace to Hitler alone the source of the satanic orders which resulted in the perpetration of the horrendous Nazi crimes, including that of the `Final Solution': "Had their contention that they acted upon the orders of Hitler been accepted as a valid defence, the rule respondeat superior would have served merely as a reductio ad absurdum for the purpose of frustrating the law. Upon such a theory it would have been impossible to punish anyone for the crimes of this war. All the perpetrators charged with offenses might have made the same defense, and the arch- criminal Hitler, by committing suicide, made it impossible to inflict punishment upon this earth" (Finch, A.J.I.L., vol. 41, p. 21). See also the observation of Justice Jackson in the report he submitted to the President of the United States in June 1945 (quoted by Wright, ibid., p. 274): "Society as modernly organized cannot tolerate so broad an arch of official irresponsibility." Here, therefore, is a weighty reason for repudiating the above defence as one which relieves from responsibility in cases of this kind. The other reason - that the very commission of the crimes in question necessarily points to the existence of criminal intent in the perpetrator - emerges from the language used by the Nuremberg Tribunal in confirming that Article 8 is part of the law of nations: "The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defense to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." (Trial of Major War Criminals (Nuremberg 1947) vol.1, p. 224). The above principle, too, is one of the `Nuremberg Principles' which were affirmed by the United Nations Assembly resolution of 11.12.46 and have become the legacy of civilized countries. If this is so, it must again be concluded that the provisions in sections 8 and 11 of the Law of 1950 are in conformity with international law. 2(d) The last point on this subject with which it is necessary to deal - one touching on the third aspect of the general problem presented above - pertains to the statement at the end of the passage just cited from the Nuremberg judgment. It was there pointed out that the true test was not whether a superior order existed, but "whether moral choice was in fact possible." In other words, the mere defence of obeying a superior order - as distinct from the defence that he could not avoid committing the crime because he had no "moral choice" to pursue another course - will not avail the accused. The Tribunal did not specify what it meant by the expression "moral choice." It may well be, however, that it had in mind the consideration of circumstances which placed the accused under the threat of having to pay with his life in the event of his failure to obey the criminal order (see Greenspan, p. 493, especially note 334; Levontin, Myth of International Security, pp. 260- 261). If this interpretation be correct - and we express no opinion on this point - then it must be understood that the Tribunal recognized that a defence of `constraint' or `necessity' might be advanced. As stated, the application of these defences as grounds for relief from responsibility in respect of the crimes defined in the Law of 1950 has been excluded by section 11 thereof. But even if the Law would have permitted the accused to set up the defence that in carrying out the order to commit the crime he was acting in circumstances of `constraint' or `necessity,' he could not have done so successfully unless the following two facts had been proved: (1) that the danger to his life was imminent; (2) that he carried out the criminal assignment out of a desire to save his own life and because he found no other possibility of doing so. The American Tribunal IIA which applied Control Commission Law No. 10 also insisted on the necessity of proving these two facts (U.S. v. Ohlendorf L.R.T.W.C., vol. 4, p. 480): "The threat, however, must be imminent, real and inevitable." "The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order. If the second proposition be true, the plea of superior orders fails... When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under superior orders." As will be seen below, neither of the said facts has been proved in this case. But we stress, in particular, the failure to prove the second fact, because each of the said two defences goes to the motive that prompted the Accused to carry out the criminal act - the motive to save his own life - and also because the District Court relied in the main on its finding that the Appellant performed the order of extermination at all times con amore, that is to say, with genuine zeal and devotion to that objective. We shall also justify this finding of the Court when we come to examine the factual contentions of Counsel for the Appellant. 16. We have yet to reply briefly to the contention of Counsel for the Appellant that the Judges of the District Court - and he advanced the same contention with reference to the Judges of this Court - were psychologically incapable of judging the case of his client objectively. Like the District Court, we, too, reject this contention, and the reply it gave in so doing is also our reply: "As for the Accused's fear concerning the background against which this trial will be heard we can only repeat the principles which apply to every judicial system worthy of the name; that indeed while on the bench a judge does not cease to be flesh and blood, possessed of emotions and impulses. However he is required by law to subdue these emotions and impulses, for otherwise a judge will never be fit to consider a criminal charge which arouses feelings of revulsion, such as treason, murder or any other grave crime. It is true that the memory of the Holocaust shocks every Jew to the depth of his being, but when this case is brought before us we are obliged to overcome these emotions while sitting in judgment. This duty we shall fulfil" (Session No. 6, Decision No. 3, Vol. I). The learned Judges did fulfil their duty - fully and to the end.
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