The refusal to recognize the superior-order defense not only is not repugnant to the ex post facto principle, but is consonant with our ideas of justice. Basically, we cannot admit that military efficiency is the paramount consideration. And we cannot even admit that individual self-preservation is the highest value. This is not a new question. Just as it is settled that X is guilty of murder if, in order that he and Y, who are adrift on a raft, may not die of starvation, he kills their companion, Z; so a German soldier is guilty of murder if, in order that he may not be shot for disobedience and his wife tortured in a concentration camp, he shoots a Catholic priest. This is hard doctrine, but the law cannot recognize as an absolute excuse for a killing that the killer was acting under compulsion--for such a recognition not only would leave the structure of society at the mercy of criminals of sufficient ruthlessness, but also would place the cornerstone of justice on the quicksand of self-interest.
Of course, there always remains the fundamental separateness of the problem of guilt and the problem of treatment. And no one would expect a tribunal to mete out its severest penalty to a defendant who yielded to wrongdoing only out of fear of loss of his life or his family's.
In addition to "war crimes," the indictment, in Count 4, charges the defendants with "crimes against humanity." This count embraces the murder, torture, and persecution of minority groups, such as Jews, inside Germany both before and after the outbreak of war. It is alleged in paragraph X of the indictment that these wrongs "constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilized nations and were involved in and part of a systematic course of conduct."
I shall pass for the time being the last phrase just quoted, for that is merely a way of saying that the Nazis persecuted the minority German groups to harden the German will for aggression and to develop an issue that would divide other countries. In other words, the legal validity of that phrase rests upon the same considerations as the validity of the charge of "crimes against the peace."
I consider first the legal validity of the other phrases upon which is premised the charge that murdering, torturing, and persecuting German Jews and other non-Nazis from 1933 to 1939 as well as from 1939 to 1945 are crimes. And before I say anything of the legal question, let me make it abundantly clear that as a human being I regard these murders, tortures, and persecutions as being morally quite as repugnant and loathsome as the murders, tortures, and persecutions of the civilian and military personnel of American and Allied nations.
In paragraph X of the indictment, reference is first made to "international conventions." There is no citation of any particular international convention which in explicit words forbids a state or its inhabitants to murder its own citizens, in time either of war or of peace. I know of no such convention. And I, therefore, conclude that when the draftsman of the indictment used the phrase "international conventions" he was using the words loosely and almost analogously with the other phrase, "general principles of criminal law as derived from the criminal law of all civilized nations." He means to say that there exists, to cover the most atrocious conduct, a broad principle of universal international criminal law which is according to the law of most penal codes and public sentiment in most places, and for violations of which an offender may be tried by any new court that one or more of the world powers may create.