Illegal Order. Responsibility for ordering a crime depended on the existence of an illegal order. The tribunals generally considered the idea of an “order” to be self-evident, perhaps because most of the orders considered in the trials were issued by individuals whose authority to require obedience from their subordinates was unquestioned, such as Xxxxxx, high-ranking SS officials, and military officers. Two tribunals, however, addressed the nature of the ordering relationship. In Xxxx, Tribunal II emphasized that a superior/subordinate relationship was a necessary element of ordering – the orderer had to have the right to demand the orderee comply with his instructions.21 And in High Command, Tribunal V held that the requisite superior/subordinate relationship could exist either de jure or de facto: as long as the defendant‟s orders were “binding upon subordinate units to whom they were directed,” it was irrelevant whether the subordinates were under the defendant‟s “direct command authority.”22 Xxxxxxxx argued, for example, that he could not give orders to civilian concentration-camp personnel because they were not formally subordinate to him. The Tribunal rejected that claim, pointing out that the concentration-camp personnel felt “compelled to comply” with his directives.23 Ordering also required the order in question to be either “criminal on its face”24 or capable of being applied in a criminal manner.25 The Commando Order was an example of the former, because it was nothing more than “an order to commit murder.”26 The two-part Barbarossa 20 Farben, Xxxxxx Concurrence, VIII TWC 1214. 21 Xxxx, V TWC 983. 22 High Command, XI TWC 651. 23 Id. 24 Id. at 512. 25 Id. at 560-61. 26 Id. at 481. Jurisdiction Order, by contrast, was an example of the latter. The order had two parts: the first permitted the execution of civilians without adequate process; the second relieved field commanders of the obligation to prosecute crimes committed by their subordinates against civilians. The first part of the order was facially criminal, but the criminality of the second part depended on its implementation, because a field commander could satisfy his obligation to protect the civilian population by disciplining his subordinates instead of by prosecuting them. The criminality of the Barbarossa Jurisdiction Order, therefore, depended upon how a field commander implemented it.27
