“I repeat: An order of the Fuehrer’s was binding—and indeed legally binding—on the person to whom it was given, even if the directive was contrary to international law or to other traditional values.”
So much for the statements of Professor Jahrreiss before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer’s command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.
It is true that in the face of all this, reference will be made to Article 8 of the Charter for the International Military Tribunal which reads: “The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”
Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads—
“(b) The fact that any person acted pursuant to the orders of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”
In the face of this objection the following is to be pointed out:
At the time of their actions the defendants were subject to German law according to which the degree of their responsibility was determined and, even today, must justly be referred back to that moment. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.
Even from the above-named provision of the Law of the Control Council, the principle cannot be derived that every command of a superior should, under the aspect of Penal Law, be irrelevant under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command in itself does not exempt one from the responsibility for a crime; it does not, however, preclude by any means that in connection with other facts it may be relevant for this problem as well.
The guiding legal aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect does not coincide eo ipso with the “objective” principle of balancing interests, as discussed in examining the case of the defendant Karl Gebhardt. In addition one must insist on consideration of the “subjective” position of the person committing the act.
In other words, in order to arrive at a just appreciation of the case, the personal situation of the person committing the act at the moment of its being committed will have to be weighed up as well. This applies particularly to the personal situation into which the person committing the act has been put by reason of a higher command which is binding for him and influences him. Besides the general “objective” principles of balancing interests, such a special “subjective” state of coercion can and must therefore be considered in his favor also. A “command” can, therefore, according to the concrete situation, shift the boundaries of culpability further in his favor.