And when these defendants tell us that they were chiefly engaged in "administrative work" this means only that they were engaged in the general management and direction of the work of the Einsatz units which they commanded. The "administrative work" which these top leaders and their immediate staffs performed at times - as in the case of Jost -- included such interesting tasks as the ordering of additional gas vans to be utilized for mass exterminations. But such items like that one are colorful rather than necessary to establish guilt. We are not aware that General Yamashita, with his own hand, took the life of anyone in the Phillipines, and surely General Anton Dostler did not serve as a member of the firing squad which shot down the fifteen American commandos who had been taken prisoner in Italy. waking hours to the extermination of Jews. The Einsatzgruppen had a general mission of which these executions were a very important part, but they did have some other things to do. We are quite prepared to believe that the defendants spent some of their time writing general reports to the RSHA and to the military intelligence officers, and that they at times scrutinized captured documents, in pursuit of what the defendant Six was plased to call "cultural objectives". Often, as the defendant Klingelhoefer conceded, the purpose of the documentary research was to identify intended victims of Einsatz executions. But, in any event, these circumstances are no more important than the conceded fact that the defendants had to take time out to eat and sleep in order to carry on. So far from being a defense or even a circumstance in mitigation, the fact that defendants like Naumann did not personally shoot a great many people, but rather devoted themselves to directing the overall operations of the Einsatzgruppen, only serves to establish their deeper responsibility for the crimes of the men under their command. such as Radetzky and Ruehl, and Schubert and Graf. It is a little different, but not much.
Even though these men were not in command, they can not escape the fact that they were members of Einsatz units whose express mission, well known to all the members, was to carry out a large scale program of murder. Any member who assisted in enabling these units to function, knowing what was afoot, is guilty of the crimes committed by the unit. The cook in the galley of a pirate ship does not escape the yardarm merely because he himself does not brandish a cutlass. The man who stands at the door of a bank and scans the environs may appear to be the most peaceable of citizens, but if his purpose is to warn his robber confederates inside the bank of the approach of the police, his guilt is clear enough. And if we assume, for the purposes of argument, that the defendants such as Schubert and Graf have succeeded in establishing that their role was an auxiliary one, they are still in no better position than the cook or the robbers watchman. group of defendants - including Schulz, Blobel, Sandberger, Steimle, Haensch and Nosske -- have claimed that they did not carry out the order. And they say that executions reported by units under their command are justified on the basis that the victims were in all cases partisans, or that they were executed in reprisal for attacks by partisans, or were proven criminals. their contention is palpably false even at first glance. Blobel, for example, was in command of Sonderkommando 4 a of Einsatzgruppe C when his unit entered the Russian city of Kiev. This ancient city had not seen such carnage since its destruction by the Monguls centuries before. As the records show, Blobel's unit killed 35,000 people in Kiev in two days, and 60,000 over the course of six months. Schulz's Einsatzkommando 5 killed 12,000 people during the six weeks of his command . Sandberger's Einsatzkommando I A of Einsatzgruppe A killed 14,500 people, including according to one report, 1,158 "Jews and Communists" at one fell swoop.
And even as to the other defendants whose recorded murders do not run to five figures, nevertheless the number of executions reported is still more than ample - particularly in view of the established pattern and purpose of Einsatzgruppen activities -- to compel the inference that these executions were certainly not all undertaken solely against partisans or by way of reprisal. the situation of the defendants is not much the better for our charity. In thus exculpating themselves under Count One of the Indictment, they have simultaneously inculpated themselves under Count Two, which charges atrocities and offenses against the laws of war, including the murder and ill-treatment of the civilian population of occupied countries. As a most eminent authority on international law has pointed out, "a war crime does not cease to be such for the reason that it is committed under the guise of reprisals". extreme as reprisals, which can be taken only when an unlawful act of warfare has first been committed by the other side. Counter-action can only be taken as a last resort, and the sole purpose of reprisals is to discourage the continuance of unlawful acts of warfare by the enemy. Reprisals may never exceed the degree of violence of the acts which they seek to stop, or the degree reasonably necessary to accomplish this purpose. by the Einsatz units never conformed with the requirements laid down by the laws of war. So far from being measures of retaliation for unlawful acts of warfare by the Russians, they were carefully planned in advance long before Germany launched the attach which began the war. Furthermore, nothing is more clearly established by the laws of war than that no surrendered combatant - whether he is a partisan, spy, or guerrilla - and no civilian may be executed without the benefit of a court-martial or military court trial to determine his guilt.
This was well known to each defendant and is written in the pay book of every German soldier. The defendants have not even pretended that this requirement was fulfilled. If we had applied to these defendants the kind of law which they administered prior to the executions they carried out, this trial would have ended the day before it began.
In arguing that the victims of the Einsatz executions were "partisans" the defendants become enmeshed in a hopeless mase of contradictions and confusions. If their own records show that the victims were Jews, they reply that all Jews were partisans. If the records show the executions of partisans, the they are asked how they knew that the victims were partisans, they reply that they must have been partisans because they had been ascertained to be Jews. This, of course, is flatly contradictory to the argument advanced by Jodl, the defendant before the IMT, who assured us that "there were enxt to no Jews among the partisans. In the main, these partisans were fanatic, steelhard Russian fighters, mostly white Russians."1 "cultural research", but the Judicial process, however summary, was not part of the activity of the Einsatzgruppen. As the defendant Klingelhoefer finally admitted on cross-examination, "whether or not the Jews had violated any order, whether they left or stayed in the ghetto, and whether or not they contacted the partisans, they were all killed".2 And the defendant Blume admitted that interrogations were not held in order to determine guilt or innocence, but to obtain information, and that the interrogation was always followed by the death of the subject.3 Having noted these admissions which, revealing as they are, serve merely to confirm what is abundantly clear from the documentary proof, we may turn to 1. IMT mimeographed transcript, p. 11075. See also the admission to the JODL's counsel, Vol.
IV, Trial of the Major War Criminals, p. 487. 2. Tr. p. 3939 3. Record p. 3756 the third general proposition which a number of the defendants have urged on the Tribunal.
That is the defense of command did carry out mass executions of Jews, gypsies, and political officials, but seek to escape the burden of guilt by pleading that they carried out these executions under the compulsion of superior orders. To this group belong Ohlendorf, Naumann, Blume, Braune, and Ott. It should be noted at the very outset that the putting forward of this plea of superior orders cuts the ground from under the defenses which we have just been considering, If, as Ohlendorf and these other defendants tell us, Hitler did order the Einsatz units to execute all Jews and political officials, and if, in obedience to Hitler's order, such executions were carried out, then there is less than nothing left of defenses such as lack of knowledge, or that the victims of the executions were all partisans. And in fact, the documents make it clear beyond the slightest doubt where the truth lies -- the order for the mass executions of Jews and political officials was given, and it was carried out and there remains for consideration only the question whether the fact that these defendants acted pursuant to an order shall be held to better their position before this Tribunal in any way. to the effect of superior orders on criminal responsibility are by now well established Normally, a subordinate is entitled to assume that orders issued to him by his superiors are lawful and do not require him to commit crimes in execution thereof; and we cannot hold the subordinates responsible to make careful inquiry or elaborate research into the background of the order to make sure that it is in fact lawful. But this general presumption for the benefit of subordinates has no application where, on its face, the order is palpably criminal. These principles have been concisely set forth in the decision of the German Supreme Court at Leipzig in the so-called Llandovery Castle Case (1921): I will quote from that opinion:
"...It is certainly to be urged in favour of the military count upon its legality.
But no such confidence can be doubt whatever against the law.
This happens only in rare and exceptional cases.
But this case was precise ly one of them.
For in the present instance, it was per breach of law.
As naval officers by profession, they were people.
They well know that this was the case here." The language of this decision is precisely applicable to the present case; here also we are dealing with even more obviously criminal orders to kill "defenseless people" on the sole ground that they were Jews, gypsies, or government or party officials. And, in any event, the scope and affect to be allowed the plea of "superior orders" are expressly set forth in Control Council Law No. 10, which is governing on this Tribunal and which states: 1 "The fact that any person acted pursuant to the order ed in mitigation."
So we are left, with this question of mitigation. In dealing with this matter, the prosecution believes that there are at least three matters which deserve primary consideration. The first is--what was the attitude of the defendants towards the criminal order and the criminal acts which it required? Obviously, if the defendants were in sympathy with or merely indifferent to the criminal character of the order, its existence can be allowed, no mitigating effect. If, and only if, the Tribunal is satisfied as to any defendant that he was opposed to and revolted by the character of the criminal order, then two other matters warrant consideration. First -- how well equipped, by rank and education, was the accused to resist the compulsory impact of the order? And secondly, how 1. Control Council Law No. 10, Article II, paragrapy 4 (b). This pro deep was the criminalnature of the order?
For by this we can, to some extent, measure the gravity of the obligation to resist it. defendants made any showing whatever which would establish a claim to mitigation. These defendants are not German peasants or artisans drafted into the Wehrmacht. They are not uneducated juveniles. They are lawyers, teachers, artists, and a former clergyman. They are, in short, men of education, who were in full possession of their faculties and who fully understood the grave and sinister significance of the program they embarked upon. They were part of the hard core of the SS. They did not give mere lip service to Himmler's atrocious racial doctrines; they were chosen for this terrible assignment because they were thought to be men of sufficient ruthlessness to carry them out. They are handpicked fanatics; Every one of them was an officer of the SS, and among those indicted here are six SS Generals, five Colonels, six Lieutenant Colonels, four Majors, and only three junior officers. They are not unhappy victims, unwillingly pushed into crime by the tyranny of the Third Reich; these men, above all others, themselves, spread the Nazi doctrine with fire and sword. of the crime which is charged here. We are not concerned with the conduct of soldiers in the heat and excitement of battle. These crimes were not committed as a result of snap judgments in serious emergencies. These crimes were committed in execution of deliberate plans laid months earlier. And the crime itself is of staggering enormity -- the annihilation of entire racial and national groups -- such as Jews and gypsies -and all leading government and party officials. Questions of guilt or innocence of the victims played absolutely no part; this was massacre for its own sake and the intended victims numbered in the millions. This case therefore, falls well within the conclusion reached by the IMT in passing judgment on Keitel and Jodl. Keitel and Jodl too, had advanced the same argument; in disposing of it, the IMT said, in the case of Keitel:
"There is nothing in mitigation. Superior orders, even justification."
and, in the case of Jodl2, the IMT said:
"His defense, in brief, is the doctrine of "superior or ders", prohibited by Article 8 of the Charter as a de fense.
There is nothing in mitigation. Participation his excuse for commission of these crimes."
the sake of formal completeness, that this defense has no application under Count Three of the indictment, which charges all the defendants with membership in organizations (the SS, the SD, and the Gestapo) declared criminal by the IMT. Under well established principles, the defendants must be convicted under Count Three on the basis of a showing that they were in fact members of any of these organizations after September 1939, and that they knew that the organizations were being utilized for the commission of acts declared criminal by the London Agreement and Charter. The defendants were all officers in the SS -- most of them high ranking -- and all of them joined the SS years before the time, during the latter part of the war, when compulsory recruiting for the Waffen SS began. The close association of all of the defendants with one of the most horrible crimes of the SS upon which great stress was laid by the IMT in rendering the declaration of criminality, needs no further emphasis here. few of the defendants, and most notably by the defendant Ohlendorf, that the massacres of the Einsatzgruppen were, under the circumstances, defensible and necessary. I have used, the expression "point of view" advisedly, 1. Vol I, Trial of the Major War Criminals, p. 391 2. Vol. I, Trial of the Major War Criminals. p. 325 for this argument is not, properly speaking, a defense against the charges stated in the indictment; rather it is an attack upon the binding character of the laws of war and international law.
Its logical conclusion is that the laws of war are not laws at all, and are not judicially enforcible. The argument runs about as follows:
(a) It was not unlawful for the Third Reich to attack Russia Government;(b) The Germans expected that, in repelling the attack, the Russians would not comply with the laws of war;(c) Therefore, it was lawful for the Germans to plan to vio ever extent might be necessary in order to achieve victory;(d) Among the Russians, those groups who could be expected sies, and political and party officials;(e) Therefore, it was lawful for the Germans to plan to ex their own military and political security;(f) Furthermore, in modern total warfare the laws of war are not and can not be observed;(g) The heavy bombing raids carried out by the allies during (h) Finally, therefore, the defendants can not be held criminThis, I believe, is an accurate statement of the arguments which the defendant Ohlendorf put forth during his testimony.
And, after all the incredible gabbling we have heard about cultural pursuits and scientific research, it is a relief to be given a direct and stark rejoinder of this kind.
This is exactly what a fanatical pseudo-intellectual SS man might well believe. Thus, when Ohlendorf was asked on the witness stand to explain why the civilized world regarded the Einsatzgruppen massacres with abhorence, he replied:1 I quote from the test:
must shoot individual persons. I believe that the time will Ohlendorf's theses is, of course, equally relevant to the other cases which are being or have been tried at Nurnberg and, indeed to all war crimes trials everywhere.
And Ohlendorf is not the sole exponent of the thesis that Allied bombing constitutes a complete and satisfactory defense to all the crimes charged in these indictments. Thus, counsel for the defendant Burkart in the Flick case, by way of defending his client against the charge of participation in the slave labor program, asked2 in his closing argument:
their wives and children, through air attacks? 1. Tr. p. 520 2. Final plea for Burkart, p. 176, in United States v. Flick, Case No. 5 And counsel for the defendant List in Case No. 7, dealing with the charge that his client had executed thousands of hostages in violation of the laws of war, observed:
1 And General Rendulic, testifying in his own behalf in that same case, drew exactly the same parallel between the killing of hostages and "air attacks" and the atomic bomb2 on the other. It is the doctrine that total war means total lawlessness. The doctrine is logically indefensible and is based upon wanton indifference to facts and the order in which certain events took place. ways tends to produce bigger guns and faster airplanes and more lethal explosives. Ultimately, the responsibility for these developments lies not with those who finish a war but with those who start it. But the question is, in any event, quite irrelevant in terms of the traditional laws of war, the laws of war have never attempted to prohibit such developments. Neither in the Hague Conventions nor in the general principles and usages of warfare have any limits ever been laid down in terms of size, speed, or destructive capacity. ordinary bombs; under the laws of war, the question is not as to the character or explosive capacity of the bomb, but how it is used. It is sad but true that the destruction of an enemy's power of resistance by air attacks against urban industrial centers has become an accepted part of modern warfare. We are constrained again to note that the responsibility for this development does not lie with any of the powers under whose authority this proceeding is conducted. The first cities to L. Final plea for List, p. 204, in United States v. List, Case No. 7 2. Case No. 7, mimeographed transcript p. 5291-92 undergo the terror of modern air raids suffered under German bombs, and Warsaw, Rotterdam, and London were badly mauled while there was still hardly a scratch on any city in Germany.
Nor can there be any suggestion that the major criminal ventures of the Third Reich -- the slave labor program, the extermination of the Jews, or any other crime of similar magnitude--were planned or committed in retaliation for Allied bombing. All of these programs were well under way and on the high road to consummation long before Allied bombing had had any appreciable effect on life in Germany.
But there are still more fundamental considerations. We may overlook for purposes of argument the question of who started all this bombing, because it is clear that in this field there is by now no question of unilateral repudiation of the laws of war. But, just as the laws of war develop by common observance, so they are not changed merely because one country breaches them, no matter how savagely and consistently. No parallel exists in modern warfare to the Einsatzgruppen and their activities. The defendant Ohlendorf justifies them on the ground that it could be expected that the Jews and party and government officials would oppose the German attack with special vigor. Even the dullest mind can imagine what would have happened in Germany had similar principles been applied during the Allied advance and occupation. that Jews were especially hostile to the Wehrmacht involves a perversion of fact and a reversal of logic so extraordinary that it would be amusing were it not so seriously advanced. After the Nazis had reviled and degraded and threatened the Jews for twenty years, it certainly might have been expected that the Russian Jews would have feared the coming of the Germans. And so now this very circumstance is put forth as a justification for slaughtering them to the last man, woman and child. We could ask for no more exact a parallel to the burglar who shoots the houseowner in self defense.
On this whole question we wish to make one final observation. The Einsatz massacres of Jews have been defended here as if it were sincerely believed that the killing of Jews was a military necessity in order to achieve military victory over the Russian Army.
But in point of fact this argument is not sincerely made. Whatever anyone may think about atom bombs or ordinary bombs, they have not been dropping here in Germany since the capitulation. But will any defendant dare to suggest to us that the execution of the Jews in Russia would have stopped if Russian military resistance had collapsed? On the contrary, the evidence is compelling that a German victory would have enormously widened the scope of operations of the Einsatzgruppen and the holocaust would have been even more staggering. Ohlendorf's own testimony makes this clear beyond a doubt. When questioned as to the necessity for the killing of Jewish children by the Einsatzgruppen he replied:1 "I believe that it is very simple to explain if one danger no smaller than that of the parents."
In short, the crimes of the Einsatzgruppen were not, fundamentally, military crimes at all. They were not committed in order to make military victory possible. On the contrary, military victory was sought in order to put the victors in a position where these crimes could be committed. These crimes were a war objective, not a military means. only because they deal with questions which are fundamental to the integrity of this proceeding, but also because they are fundamental to the very existence of the laws of war and international penal law. Not only is this 1. Mimeographed transcript p. 662 Tribunal dedicated to the enforcement of international law; it owes its very existence to international law and agreements.
Though constituted by the United States, its jurisdiction is established and defined by international agreements and declarations. One of the things for which we fought was to put an end to international anarchy, and the need for establishing international law on a practical and enforcible footing has never been clearer than it is today. ing with us on questions of international law, and what they did was not only a crime against humanity under international penal law; it was a heinous crime under all civilized legal systems. It is for this Tribunal, not for the prosecution, to determine what punishment the deep guilt of these defendants merits. But it is within the legitimate prerogatives of the prosecution to state the nature of the crime. The crime involved in this case is murder -- deliberate, premeditated murder; murder on a gigantic scale; murder committed for the worst of all possible motives. Some of these defendants still believe that what they did was not murder because the victims were Jews. No system of domestic or international penal law could possibly survive under which the determination of guilt for murder is governed by the political or religious creed or racial origin of the victim. It is vitally important to the peace of the world that no such doctrine gain currency among nations. We earnestly suggest to the court that true judicial, wisdom in this case counsels firmness rather than leniency to those adjudged guilty of this terrible crime against humanity.
THE PRESIDENT: Dr. Hoffmann:
DR. HOFFMANN(Attorney for the Defendant Nosske): I have a request, Your Honor, that the defense will be permitted a brief recess in order to determine how and who will reply to the prosecution's statement.
THE PRESIDENT: Just a moment please. We could combine the time required for defense counsel deliberations with the regular morning recess.
In that way both ends will be served. The Tribunal will therefore be in recess until eleven o'clock this morning.
(A recess was taken.)
THE MARSHAL: The Tribunal is again in session.
DR. ASCHENAUER: Your Honor, the defense, apart from my colleagues Dr. Hoffmann and Dr. Gawlik, are of the opinion that General Taylor's speech did not bring anything new. With the exception of Dr. Gawlik and Dr. Hoffmann, the defense waives the right of an oral reply but reserves the right to reply to the Prosecution's closing briefs.
THE PRESIDENT: Well, Dr. Aschenauer, I thought that defense counsel had already submitted closing trial briefs. You don't mean that you are going to submit still another trial brief, do you?
DR. ASCHENAUER: Your Honor, a number of colleagues have not yet received the closing brief of the prosecution. General Taylor has emphasized the fact that there are a number which are yet to be submitted to the defense. Therefore, I think it would be a good thing if the Prosecution was told, how much time they will be given to submit these closing briefs, and that the colleagues concerned who have not yet received these closing briefs should also have a deadline up to when they can reply to these closing briefs.
THE PRESIDENT: Ordinarily the function of today should terminate definitively all proceedings in this case, but we will allow still a short further time in connection with these trial briefs, but we will now specify that one week from today will be the absolute deadline on the receipt of any type of document or evidence from either side. What ever arrangements must be made with regard to the mechanics of producing these trial briefs will need to be taken care of immediately, and we urgently request counsel on both sides to cooperate so that the Tribunal will have whatever is outstanding no later than within the week from today. briefs, the Prosecution trial briefs will have to be submitted first and we assume that prosecution will have those briefs ready, if, in fact, they are not all ready now.
DR. ASCHENAUER: Thank you.
THE PRESIDENT: Yes, Now we understand that Dr. Gawlik and Dr. Hoffmann would like to make some comment on the presentation of the prosecution this morning.
DR. HOFFMANN: ATTORNEY Hoffmann for the defendant Nosske. fendants who have declared from the very beginning that they objected to the Fuehrer Order and did not carry it out.
General Taylor in his speech put all these defendants in one group, and he stated that, if these defendants were punished under Count I, for carrying out the Fuehrer Order, then they had to be punished under Count II of the indictment because of their activity in the Security Police in Russia, and their shooting of partisans and hostages. conducted this trial as one in which the Fuehrer Order was the main count. Concerning the question whether the shooting hostages and partisans or was not a legal act was not mentioned by the prosecution in this trial. I remind Your Honors that this particular point, the question of the shooting of hostages and partisans was one of the cardinal points in the generals' trial, which has been concluded just now, and where this question was discussed for six or seven months. If the prosecution puts these points into the foreground now concerning a few defendants, then in my opinion a number of details are not mentioned, and especailly those points which are regarded as illegal by the prosecution. These cases were not examined and especially, and that is the main thing, they did not point out to the defense that these facts had become the main points against some of the defendants. not been examined sufficiently by the prosecution and not enought documents have been submitted concerning this subject as to now accuse them because of their police activities.
THE PRESIDENT: Well, Dr. Hoffmann, war crimes are part of the case. You admit that, don't you?
DR. HOFFMANN: Yes.
THE PRESIDENT: Now the prosecution presented many documents and in those documents references are made to various types of executions. Many of the defendants explain that executions in which they participated were in accordance with the laws of war, and where that has been established and proved, then natureally the charge of the prosecution of the particular instance cannot be sustained. If an execution is proved to have taken place in accordance with the laws of war, then there is no crime. So we fail to see, where the prosecution summation advanced anything, which you did not have the opportunity to reply to in the presentation of the defense, and if it is your conclusion that the prosecution has not proved these particular crimes, well then, naturally you haven't in any way been offended.
DR. HOFFMANN: Your Honor, then in agreement with this point of view of Your Honor, I would like you to rule that in all the individual cases where it was not explicitly clear whether there was a violation of the laws of war or not, the defense as far as I myself am concerned, is of the opinion that the Prosecution did not prove that, apart from the Fuehrer Order, any laws of war have been violated.
THE PRESIDENT: Well, the Tribunal certainly is not going to make any ruling of that character. The indictment has been filed, the prosecution has presented its case and the defense has presented its case completely. The issues are now before the Tribunal for eventual and definitive decision. Closing arguments are helpful and interesting but are not evidence.
DR. GAWLIK: Dr. Gawlik for the defendants Naumann and Seibert. however, did not add that two judges of the Supreme Court, the Judges Murphy and Ruthledge, objected to this decision. They objected to this decision with very strong words, I am not in the position to quote verbatim at the moment, but there is one sentence which goes as follows:
"Wherever the American flag is waving the principles of American law must be adhered to" and these principles of Americal law in this particular case, the Yamashita case, it was said, had not been adhered to, and these two judges advised number of reasons, I think, as far as I remember there were five or six reasons, why these two judges of the Supreme Court, Murphy and Ruthledge, objected. fendants. He gave as an example the cook in the kitchen of a boat. Far be it from me to compare these defendants to cooks, but I want to take up his paralled, in order to deal with the basis of the legal thoughts concerned her. The chief prosecutor did not add that according to a decision of the Supreme Count this cook cannot be punished if he acted in execution of the orders of the chief. In this decision it is mentioned explicitly that on a boat it is only the captain who has the power of command and that his crew has to comply even with illegal orders. When taking up this particular example of the boat, then in this case, in my client's ease, it is Hitler who is the captain. Deputy captain is Himmler and the vice-deputy captain is Heydrich, and those people were the only ones responsible, and not the defendants who are my clients. courts. I am very much surprised that the prosecution, in order to prove that higher order does not exclude punishment, of all things cited the opinion of a German law court. I conclude from this and any decisions made by an American or British law courts before the Second World War are not mentioned and can not be mentioned. The prosecution always held the opinion that in this procedure the German legal principles are to be disregarded because, according to these laws the defendants could not be punished, because one of the German laws which was valid at that times was the Fuehrer Order which, and I am now referring to the statements of Professor Jareis, is a law which was then in force.
Either you apply German law or international law, but you cannot apply international law once and then again German law just as the case may be. IV the defendant cannot refer to an order by his government or his superiors. I draw the attention of the High Tribunal to the face that the chief of state is not mentioned here. In this decree it is only government or superior Government and chief of state are entirely different matters and different terms according to international law. Therefore, if we invert this decision then it follows that a subordinate can refer to an order of the chief of state.