On
this date, December 1, 1945, a German General, Anton Dostler was executed by
firing squad in Aversa, Italy. The trial found General Dostler guilty of war
crimes, rejecting the defense of Superior Orders. I will post about Superior
Orders from Wikipedia, in accordance to the same date of his execution.
Superior orders,
often known as the Nuremberg defense, lawful orders or by the
German phrase "Befehl ist Befehl" ("Orders are
Orders"), is a plea in a court of law that a soldier not be held guilty
for actions which were ordered by a superior officer. The superior orders plea
is similar to the doctrine of respondeat superior in tort law where a superior is
held liable for the actions of a subordinate. Some legal scholars and war
crimes tribunals will correlate the plea to the doctrine of respondeat
superior; whereas others will distinguish the two concepts.
The
superior orders plea is often regarded as the complement to command
responsibility.
One
of the most noted uses of this plea, or "defense," was by the accused
in the 1945–46 Nuremberg Trials, such that it is also called the
"Nuremberg defense". The Nuremberg Trials were a series of military
tribunals, held by the main victorious Allied forces of World War II, most
notable for the prosecution of prominent members of the political, military,
and economic leadership of the defeated Nazi Germany. It was during these
trials, under the London Charter of the International Military Tribunal which
set them up, that the defense of superior orders was no longer considered
enough to escape punishment; but merely enough to lessen punishment.
Historically,
the plea of superior orders has been used both before and after the Nuremberg
Trials, with a notable lack of consistency in various rulings.
Apart
from the specific plea of Superior Orders, discussions about how the general
concept of superior orders ought to be used, or ought not to be used, have
taken place in various arguments, rulings and Statutes that have not
necessarily been part of “after the fact” war crimes trials, strictly speaking.
Nevertheless these discussions and related events help us understand the
evolution of the specific plea of superior orders and the history of its usage.
 |
| Hagenbach on trial, from Berner Chronik des Diebold Schilling dem Älteren |
1
History before 1900
1.1 The trial of Peter von Hagenbach
In
1474, in the trial of Peter von Hagenbach by an ad hoc tribunal of
the Holy Roman Empire, occurred the first known “international” recognition of
commanders’ obligations to act lawfully. Hagenbach offered the defense that he
was just following orders, but this defense was rejected and he was convicted
of war crimes and beheaded.
Specifically,
Hagenbach was put on trial for atrocities committed under his command but not
by him directly, during the occupation of Breisach. This was the earliest
modern European example of the doctrine of command responsibility. Since
he was convicted for crimes "he as a knight was deemed to have a duty to
prevent," Hagenbach defended himself by arguing that he was only following
orders from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman
Empire had given Breisach. This defense was rejected.
2
History from 1900 to 2000
2.1
German military trials after World War I
On
June 4, 1921, the legal doctrine of superior orders was used during the German
Military Trials that took place after World War I: One of the most famous of
these trials was the matter of Lieutenant Karl Neumann, who was a U-Boat
Captain responsible for the sinking of the hospital ship the Dover Castle.
Even though he frankly admitted to having sunk the ship, he stated that he had
done so on the basis of orders supplied to him by the German Admiralty; and
that being so, he could not be held liable for his actions. The Leipzig Supreme
Court (then Germany's supreme court) acquitted him, accepting the defense of
superior orders as a grounds to escape criminal liability. Further, that very
court had this to say in the matter of superior orders:
“… that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors."
Many
accused of war crimes were acquitted on a similar defense, creating immense
dissatisfaction amongst the Allies. This has been thought to be one of the main
causes for the specific removal of this defense in the August 8, 1945 London Charter
of the International Military Tribunal. This removal has been attributed to the
actions of Robert H. Jackson, a Justice of the United States Supreme Court, who
was appointed Chief Prosecutor at the Nuremberg Trials.
2.2
The Dostler case
On
October 8, 1945, Anton Dostler was the first German general to be tried for war
crimes by a U.S. military tribunal at the Royal Palace of Caserta in Caserta.
He was accused of ordering the execution of 15 captured U.S. soldiers of
Operation Ginny II in Italy in March 1944. He admitted into ordering the
execution but said that he could not be held responsible because he was just
following orders from his superiors. The execution of 15 U.S. prisoners of war
in Italy ordered by Dostler was an implementation of Hitler's Commando Order of
1942 which required the immediate execution of all Allied commandos, whether in
proper uniforms or not, without trial if apprehended by German forces. The
tribunal rejected the defense of Superior Orders and found Dostler guilty of war
crimes. He was sentenced to death and executed by a firing squad on December 1,
1945, in Aversa.
The
Dostler case became a precedent for the principle, used in the Nuremberg Trials
of German generals, officials, and Nazi leaders beginning in November 1945,
that using Superior orders as a defense does not relieve officers from
responsibility of carrying out illegal orders and their liability to be
punished in court. This principle was codified in Principle IV of the Nuremberg Principles, and
similar principles were found in sections of the Universal Declaration of Human
Rights.
2.3
Nuremberg Trials after World War II
See
also: Nuremberg Trials
In
1945 and 1946, during the Nuremberg Trials the issue of superior orders again
arose. Before the end of World War II, the Allies suspected such a defense
might be employed, and issued the London Charter of the International Military
Tribunal (IMT), which specifically stated that following an unlawful order is
not a valid defense against charges of war crimes.
Thus,
under Nuremberg Principle IV, "defense of superior orders" is not a
defense for war crimes, although it might influence a sentencing authority to
lessen the penalty. Nuremberg Principle IV states:
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
During
the Nuremberg Trials, Wilhelm Keitel, Alfred Jodl
and other defendants unsuccessfully used the defense.
(Before
the trials, there was little consensus amongst the Allies as to what was to be
done with the Nazi war prisoners. Winston Churchill was inclined to have the
leaders 'executed as outlaws'. The Soviets desired trials, but wished there to
be a presumption of guilt, as opposed to the procedural presumption of
innocence that accompanies most western criminal trials.
2.3.1
The "Nuremberg Defense"
These
trials gained so much attention that the "superior orders defense"
has subsequently become interchangeable with the label, "Nuremberg
defense". This is a legal defense that essentially states that the
defendant was "only following
orders" ("Befehl ist Befehl", literally "an order is
an order") and is therefore not responsible for his or her crimes.
However,
U.S. General Telford Taylor, who had served as Chief Counsel for the United
States during the Nuremberg trials, employed the term "Nuremberg
defense" in a different sense. He applied it not to the defense offered by
the Nuremberg defendants, but to a justification put forward by those who
refused to take part in military action (specifically America's involvement in
the Vietnam War) that they believed to be criminal. Used in this way,
"Nuremberg defense" refers not to the position that "an order is
an order", but rather to the opposing (and rebutting) view that only lawful
orders are binding. (This latter use of the term has apparently fallen into
disuse, perhaps in part as a result of the United States' subsequent abolition
of the draft.)
2.4
History from 1947 to 2000
The
defense of superior orders again arose in the 1961 trial of Nazi war criminal
Adolf Eichmann in Israel, as well as the trial of Alfredo Astiz of Argentina,
the latter responsible for a large number of disappearances and kidnappings
that took place during that country's Dirty War.
2.4.1
Israeli law since 1956
In
1957, the Israeli legal system established the concept of a 'blatantly illegal
order' to explain when a military order (or in general, a security-related
order) should be followed, and when an order must not be followed. The
concept is explained in 1957 by the infamous Kafr Qasim massacre ruling.
The
Kafr Qasim trial considered for the first time the issue of when Israeli
security personnel are required to disobey illegal orders. The judges decided
that soldiers do not have the obligation to examine each and every order in
detail as to its legality, nor were they entitled to disobey orders merely on a
subjective feeling that they might be illegal. On the other hand, some orders
were manifestly illegal, and these must be disobeyed. Judge Benjamin Halevy's
words, still much-quoted today, were that "The distinguishing mark of a manifestly
illegal order is that above such an order should fly, like a black flag, a
warning saying: 'Prohibited!'." (Lippman, Bilsky).
The
notion of 'blatantly illegal orders' is taught as part of mandatory studies in
the Israeli high-school system, as well as in basic training in the mandatory
Israeli Defense Forces (IDF) service.
2.4.2
1968 My Lai Massacre
Following
the My Lai Massacre in 1968, the defense was employed
during the court martial of William
Calley. Some have argued that the outcome of the My Lai Massacre courts
martial was a reversal of the laws of war that were set forth in the Nuremberg
and Tokyo War Crimes Tribunals. Secretary of the Army Howard Callaway was
quoted in the New York Times as stating that Calley's sentence was
reduced because Calley believed that what he did was a part of his orders.
In
United States v. Keenan, the accused was found guilty of murder after he
obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of
Military Appeals held that "the justification for acts done pursuant to
orders does not exist if the order was of such a nature that a man of ordinary
sense and understanding would know it to be illegal." The soldier who gave
the order, Corporal Luczko, was acquitted by reason of insanity.
2.4.3
1996, Erich Priebke
In
1996, the superior orders defense was successfully used by Erich Priebke, although the verdict was
appealed and he was later convicted. It was used with varying degrees of
success by those involved in the Hostages Trial.
2.4.4
The 1998 Rome Statute of the International Criminal Court
It
could be argued that a version of the superior orders defense can be found as a
defense to international crimes in the Rome Statute of the International
Criminal Court. (The Rome Statute was agreed upon in 1998 as the foundational
document of the International Criminal Court, established to try those
individuals accused of serious international crimes.) Article 33, titled
"Superior orders and prescription of law," states:
1.
The fact that a crime within the jurisdiction of the Court has been committed
by a person pursuant to an order of a Government or of a superior, whether
military or civilian, shall not relieve that person of criminal responsibility
unless:
(a)
The person was under a legal obligation to obey orders of the Government or the
superior in question;
(b)
The person did not know that the order was unlawful; and
(c)
The order was not manifestly unlawful.
2.
For the purposes of this article, orders to commit genocide or crimes against
humanity are manifestly unlawful.
There
are two interpretations of this Article:
·
This
formulation, especially (1)(a), whilst effectively prohibiting the use of the
Nuremberg defense in relation to charges of genocide and crimes against
humanity, does however, appear to allow the Nuremberg defense to be used as a
protection against charges of war crimes, provided the relevant criteria are
met.
·
Nevertheless,
this interpretation of ICC Article 33 is open to debate: For example Article 33
(1)(c) protects the defendant only if "the order was not manifestly
unlawful." The "order" could be considered "unlawful"
if we consider Nuremberg Principle IV to be the applicable "law" in
this case. If so, then the defendant is not protected. Discussion as to whether
or not Nuremberg Prinicple IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or
lack of power.
3
History 2000 to present
3.1
Legal proceedings of Jeremy Hinzman in Canada
See
also: Jeremy Hinzman, Anne
L. Mactavish, and Canada and Iraq War resisters
Nuremberg
Principle IV, and its reference to an individual’s responsibility, was at issue
in Canada in the case of Hinzman v. Canada. Jeremy
Hinzman was a U.S. Army deserter who claimed refugee status in Canada as a
conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, (at
that time Jeffry House), had previously raised the issue of the legality of the
Iraq War as having a bearing on their case. The Federal Court ruling was
released on March 31, 2006, and denied the refugee status claim. In the
decision, Justice Anne L. Mactavish addressed the issue of personal
responsibility:
“An individual must be involved at the policy-making level to be
culpable for a crime against peace ... the ordinary foot soldier is not
expected to make his or her own personal assessment as to the legality of a
conflict. Similarly, such an individual cannot be held criminally responsible
for fighting in support of an illegal war, assuming that his or her personal
war-time conduct is otherwise proper.”
On
Nov 15, 2007, a quorum of the Supreme Court of Canada made of Justices Michel
Bastarache, Rosalie Abella, and Louise Charron refused an application to have
the Court hear the case on appeal, without giving reasons.
“...
in written arguments to the Supreme Court of Canada, Mr. House pointed out that
although our courts have so far refused to grant refugee status to American
soldiers who are deserting military duty out of moral objection to the war in
Iraq, in 1995 the Federal Court of Appeal granted refugee status to a deserter
from Saddam Hussein's armed incursion into Kuwait, on the basis that he should
not be compelled to take part in an illegal war.
"The
courts are taking one stance for Saddam Hussein's soldiers and another one
entirely for American soldiers," Mr. House said.
3.2
Legal proceedings of Ehren Watada in the United States
In
June 2006, during the Iraq War, Ehren
Watada refused to go to Iraq on account of his belief that the Iraq war was
a crime against peace (waging a war of aggression for territorial
aggrandizement), which he believed could make him liable for prosecution under
the command responsibility doctrine. In this case, the judge ruled that
soldiers, in general, are not responsible for determining whether the order to
go to war itself is a lawful order - but are only responsible for those orders
resulting in a specific application of military force, such as an order to
shoot civilians, or to treat POWs inconsistently with the Geneva Conventions.
This is consistent with the Nuremberg Defense, as only the civilian and
military principals of the Axis were charged with crimes against peace, while
subordinate military officials were not so charged. It is often the case in
modern warfare that while subordinate military officials are not held liable
for their actions, neither are their superiors, as was the case with Calley's
immediate superior Captain Ernest Medina.
Based
on this principle international law developed the concept of individual
criminal liability for war crimes which resulted in the current doctrine of
command responsibility.
4
Arguments for and against
4.1
Historical overview summary table
(For
overview purposes, the below table attempts to capsulize much of the history in
the above article. It is based on references above. To navigate to those
supporting references and further information for each case, click on "see
details" for each case.)
Date
|
Preceding context
|
Jurisdiction / decisionmaker
|
Defendant(s) or case(s)
|
[found] "responsible"
despite superior orders
|
[found] "not responsible"
because of superior orders
|
1474
|
the occupation of Breisach
|
ad hoc tribunal of the Holy Roman Empire
|
yes (see
details)
|
||
1921
|
Germany's Supreme Court (trials
after World
War I)
|
Lieutenant Karl Neumann and others
|
yes (see
details)
|
||
1945
|
Nuremberg
trials after World War II
|
all defendants
|
yes (see
details)
|
||
1998
|
preparation for future cases
|
future cases under Article 33 of the
Rome
Statute of the International Criminal Court
|
in cases of genocide and
possibly other cases (see
details)
|
possibly in cases other than genocide (see
details)
|
|
2006
|
Jeremy
Hinzman (refugee applicant)
|
equivalent to yes (see
details)
|
This is an incomplete list, which may never be
able to satisfy particular standards for completeness. You can help by expanding
it with reliably sourced entries.
4.2
Arguments
See
also: international legal theory, sources of international law, laws of war, and
Rule of Law in Armed Conflicts
Project
The
superior orders defense is still used with the following rationale in the
following scenario: An "order" may come from one's superior at the
level of national law. But according to Nuremberg Principle IV, such an
order is sometimes "unlawful" according to international law.
Such an "unlawful order" presents a legal dilemma from which there is
no legal escape: On one hand, a person who refuses such an unlawful
order faces the possibility of legal punishment at the national level
for refusing orders. On the other hand, a person who accepts such an
unlawful order faces the possibility of legal punishment at the
international level (e.g. Nuremberg Trials) for committing unlawful acts.
Nuremberg Principle II responds to that
dilemma by stating: "The fact that internal law does not impose a penalty
for an act which constitutes a crime under international law does not relieve
the person who committed the act from responsibility under international
law."
The
above scenario might present a legal dilemma, but Nuremberg Principle IV
speaks of "a moral choice" as being just as important as
"legal" decisions: It states: "The fact that a person acted
pursuant to order of his Government or of a superior does not relieve him from
responsibility under international law, provided a moral choice was in
fact possible to him".
In
"moral choices" or ethical dilemmas an ethical decision is often made
by appealing to a "higher ethic" such as ethics in religion or
secular ethics. One such "higher ethic," which is found in many
religions and also in secular ethics, is the "ethic of reciprocity,"
or the Golden Rule. It states that one has a right to just treatment, and
therefore has a reciprocal responsibility to ensure justice for others.
"Higher ethics," such as those, could be used by an individual to
solve the legal dilemma presented by the superior orders defense.
Another
argument against the use of the superior orders defense is that it does not
follow the traditional legal definitions and categories established under
criminal law. Under criminal law, a principal is any actor who is primarily
responsible for a criminal offense. Such an actor is distinguished from others
who may also be subject to criminal liability as accomplices, accessories or
conspirators. (See also the various degrees of liability: absolute liability,
strict liability, and mens rea.)
Nuremberg
Principle IV, the international law which counters the superior orders defense,
is legally supported by the jurisprudence found in certain articles in the
Universal Declaration of Human Rights which deal indirectly with conscientious
objection. It is also supported by the principles found in paragraph 171 of the
Handbook on Procedures and Criteria for Determining Refugee Status which was
issued by the Office of the United Nations High Commissioner for Refugees
(UNHCR). Those principles deal with the conditions under which conscientious
objectors can apply for refugee status in another country if they face
persecution in their own country for refusing to participate in an illegal war.
PLEASE WATCH THESE
TWO VIDEOS TO SEE THE TRIAL & EXECUTION OF ANTON DOSTLER:
Trial
and Execution of General Anton Dostler w/Musical Score (REAL)
VIDEO
SOURCE: http://www.youtube.com/watch?v=FMQCpUlqCiE
Military
History - Execution of German General Anton Dostler
VIDEO SOURCE: http://www.youtube.com/watch?v=wKuyMgX5zi0
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