When can a military commander be the judge of military necessity? Can a member of the armed services be punished for obeying an order which was practically impossible to dispute at the time? The answers to these questions are of vital importance to anyone in the military service or to anyone who, in time of war, could become a member of a uniformed force. The answers have been essentially classified from the precedents set by the 1945 Nurnberg War Trials.
During World War II, the Peleus, a Greek freighter, was sunk without warning in the south Atlantic by a German submarine, the U-852. When attacked, she was without escorts and was approximately 300 miles from the nearest land, having just departed Freetown, Sierra Leone. The area in which she was sunk was within easy range of Allied land-based aircraft, and quite recent to the sinking, four German U-boats had disappeared in the same area.
The U-boat surfaced immediately after the sinking, and the commanding officer ordered his guns to open fire on the survivors in the water, resulting in the death of all but three of the crew of 35. Six weeks after the attack, the U-boat was beached after an air attack, and her entire crew was captured. In October 1945, the U-boat captain, together with four other officers, including the medical officer, were tried for the crime before a British military court in Hamburg.
At the trial, the U-boat captain maintained that the purpose of his ordering the guns to fire was primarily the destruction of wreckage, so that every trace of the sinking could be obliterated to ensure the safety of the boat against subsequent air attack. If, as a result, survivors were killed, it was unfortunate for them, but he had acted under the paramount necessity of protecting his boat and his crew.
The judge advocate argued that it is a fundamental usage of war that the killing of unarmed enemies is forbidden. He reminded the court that they must first of all consider the principle of international law as expressed in the Llandovery Castle case, held during the Leipzig Trials in a German Court after World War I. In this case, two subordinate German submarine officers were condemned for firing on lifeboats in which shipwrecked survivors of an attack had taken refuge. The principle stated in that judgment took the following form: The firing on the boats was an offense against the law of nations. In war on land, the killing of unarmed enemies is not allowed, similarly, in war at sea, the killing of shipwrecked people who have taken refuge in lifeboats is forbidden. It was admitted by the judge advocate in the Peleus trial that circumstances might arise in which such killing could be justified for the purpose of saving the commander’s life, but he also added that it was a fortunate fact that the Court included naval officers of long experience who were able to assess the value of these facts.
The four other officers of the crew relied upon the defense of superior orders. “Yes, I fired on the rafts,” they answered, “the Kommandant gave me orders; he gave orders directly to me.” It was argued that they had acted under superior orders, orders coming from a higher authority which the accused were by the law and custom of their service obliged to obey. The judge advocate offered the following argument against the plea: The Court when confronted with a plea of superior orders in justification of a war crime is bound to take into consideration the fact that obedience of military orders not obviously unlawful is a duty of every member of the armed forces, and that the latter cannot in conditions of war discipline be expected to weigh scrupulously the legal merits of the order received. The question, however, is governed by the major consideration that members of the armed forces are bound to obey lawful orders only, and that they cannot escape liability if in obedience to a command they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.
Professor Robert W. Tucker, an international law authority, has stated that the trial established that most of the accused had known the captain’s command to fire at helpless survivors was not a lawful command. As against the defense argument that many rules of international law were vague and uncertain, the judge advocate ruled that “if this were a case which involved the careful consideration of the question whether or not the command to fire at helpless survivors struggling in the water was lawful in International Law, the Court might well think that it would not be fair to hold any of the subordinates accused in this case responsible for what they were alleged to have done. In the present case, however, it must have been obvious to the most rudimentary intelligence that it was not a lawful command. ...”
All of the accused were found guilty and, with the exception of the engineering officer, were sentenced to death by firing squad. The engineer was not condemned to death because he had first protested the order to fire before he had done so.
The decisions reached by 18th and early 19th century American and British courts, as a general rule, refused to accept as a defense the plea of obedience to a superior’s illegal orders under any circumstances. Many of the cases cited below can be found in Sheldon Glueck’s excellent work, War Criminals, Their Prosecution and Punishment.
In 1804, an act of Congress prohibited American ships from trading with the French and authorized the president to issue instructions for the seizure of American vessels found to be sailing to French ports. The President issued orders to commanders of American public armed ships to stop and examine American vessels on the high seas suspected of such prohibited commerce. An American armed ship stopped a suspected vessel on the high seas and took her to Boston. The ship was Danish, and her owners sued the American ship’s officers for damages. In this case, Little vs. Barr erne, 1804, the defendants claimed that they had acted on presidential instructions issued by the Secretary of the Navy which specifically included the order to see that vessels actually American “but covered by Danish or other foreign papers, and bound to and from French ports, did not escape.” The defendants felt they were following the letter of the law, but the order under which they were acting was subsequently declared by a court to be unlawful. Chief Justice John Marshall, speaking for the Supreme Court in the majority decision, which held the officers to be personally liable in damages for acts done in obeying the order, said, “ . . . the instruction cannot change the nature of the transaction, or legalize an act, which, without those instructions, would have been a plain trespass.” In other words, obeying a lawful order that could later be proved unlawful was no excuse as a defense. One could not justify an act if the order obeyed is unlawful.
The British offered a small loophole in 1717 for ignorance of the law as an excuse for the military as given in the following excerpts taken from Bruce’s The Institutions of Military Law, Ancient and Modern: Those who live under any state or government know its laws, and ignorance of these laws is no excuse; however, there are extenuating circumstances giving the privilege of ignorance of the law as a defense under certain conditions to the soldier in “that their time being wholly engrossed by military employments, it can scarce be expected they will have leisure to advise with those whose profession obliges them to be thoroughly acquainted with law. And therefore it hath of late been decided in some foreign Courts, that if a soldier be quartered where he has opportunity of consulting lawyers, and himself not being upon actual duty, he is to forfeit the privilege; his error in that case being rather the effect of negligence than ignorance. Yet here we are to consider that this privilege is only to be extended to the law of nature or nations. If therefore, a soldier do an action, which all civilized people reckon a crime, or which natural instinct dictates to be such he is certainly unworthy of the privilege.” The above should have given added impetus to the soldier to study civil law during his off-duty hours. As the last paragraph states, however, the soldier has no privilege when his actions are known to be criminal.
During the Napoleonic Wars, some French prisoners in a Scottish jail failed to extinguish a candle when so ordered, and a guard, under direct orders of an Ensign Maxwell, fired at the light killing one of the prisoners. Maxwell was tried and convicted of murder before the High Court of Justiciary of Scotland. His plea of executing the orders of higher authority was rejected by the court which charged the Jury as follows:
“If an officer were to command a soldier to go out to the street and to kill you or me, he would not be bound to obey. It must be a legal order given with reference to the circumstances in which he is placed, and thus every officer has a discretion to disobey orders against the known laws of the land.” During the War of 1812, an American privateer stopped and searched a neutral Portuguese vessel on the high seas. The Americans assaulted the Portuguese captain and crew and stole valuables. The plea of Jones and other members of the American crew in the ensuing trial for piracy, U. S. vs Jones, was that they were only obeying the orders of their captain. Circuit Justice George Washington answered this plea by stating, “No military or civil officer can condemn an inferior to violate the laws of his country; nor will such command excuse, much less justify the act . . . the law . . . which enjoins on inferior officers or privates the duty of obedience to their superior, cautiously speaks of lawful orders of that superior. Disobedience of an unlawful order, must not of course be punishable ... we do not go further than to say, that the participation of the inferior officer in an act which he knows, or ought to know to be illegal, will not be excused by the order of his superior.”
In 1851 in the case of Mitchell vs Harmony, an American army officer was sued for unlawfully seizing the goods of a trader in occupied territory during the Mexican War. His claim of acting under superior orders was rejected. Chief Justice Robert B. Taney wrote, “And upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. The order can palliate, but it cannot justify.”
When Captain Henry Wirz, the Confederate Commandant of the infamous Andersonville prison pleaded superior orders for the nefarious crimes committed under his command, the judge advocate said, “The superior could no more command prisoner [accused] to violate rules of war than the prisoner could do without orders.” Wirz was executed by order of the military court on 10 November 1865.
The general feeling of early 19th century courts concerning the obligation of the military to the obedience of unlawful orders may be summed up by a portion of the Instructions for the Government of Armies of the United States in the Field, 24 April 1863. By these, a soldier is not always protected in obeying his superior’s order. He is criminally as well as civilly liable if the order he obeyed is illegal.
By the latter part of the 19th century, and the beginning of the 20th century, the pendulum began its swing in the other direction, protecting subordinates more and more when executing the orders of their superiors.
In McCall vs. McDowell, an 1867 Federal case concerning false imprisonment, it was found that a subordinate could be excused from obeying a superior’s order if he were unable to determine that it was actually an unlawful order. The judge in this case said, “But I am not satisfied that Douglas (the officer who executed the order) ought to be held liable to the plaintiff at all. He acted not as a volunteer, but as a subordinate in obedience to the order of his superior. Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the orders of his commander.
“Otherwise he is placed in the dangerous dilemma of being liable in damages to third persons for obedience to an order, or to the loss of his commission and disgrace for disobedience thereto. If Douglas is liable to the plaintiff, so is every private soldier who constituted his guard from Potter Valley to San Francisco, and even the almost unconscious sentry who stood guard at the prison of Alcatraz. Yet there was no alternative for either Douglas or these soldiers, but to do as they did, or refuse obedience to their lawful superiors, in a matter of which they were incapable of judging correctly, at the peril of disgrace and punishment to themselves. The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an Army.”
Lassa F. Oppenheim, an international law authority, stated in 1906 that armed forces are permitted to practice any and all types of hostile acts not prohibited by specific laws of war. Acts committed either by combatants or noncombatants against enemy persons which are not permitted by and constitute transgressions of laws of war as established by international law are “War Crimes.” He held that “violations of rules regarding warfare are war crimes only when committed without an order of the belligerent government concerned.” In other words, illegal acts of warfare consummated under direct orders of the state, relieve the individual of responsibility for performing such acts.
Reflecting the principle incorporated in the British Manual of Military Law, 1929, paragraph 347 of the American Rules of Land Warfare, after listing typical “offenses by armed forces,” specifically provided that a soldier has a valid defense if his act was ordered by his government or by a commander, “ . . . individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commander. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.” The above provisions remained in effect from 1929 until 1944, when they were changed by the British and soon after by the United States. In 1944, The British Manual of Military Law (paragraph 443) now allowed the plea of superior orders to be considered in mitigation of punishment, however, liability depended upon proof that there was actual knowledge that the act which was performed was unlawful. The U. S. Army’s Rules of Land Warfare (paragraph 345) now provided that if “War crimes” were performed by orders of a belligerent government or a superior, this fact could be “taken into consideration in determining culpability, either by way of defense or in mitigation of punishment.”
In order to stop any trend which could allow a plea of superior orders by a subordinate in cases of illegal orders, or the plea that a commander could not be held responsible for an “act of state,” where the legal contention is made that only states are subject to the law of nations, and that there exist no sanctions for individual offenses, a Charter for the constitution of an International Military Tribunal was promulgated by executive agreement between the four major victorious powers of World War II on 8 August 1945. The Charter was the law at the trial of the German War Criminals at Nurnberg and was “decisive and binding on the Tribunal.” Many international legal authorities, and statesmen, including the late Senator Robert A. Taft, felt that there was no precedent for trying individuals for “acts of state” under international law. It was felt by many that the act of the leader is the act of the sovereign, and that the State should answer instead of the individual. The German defense maintained throughout the trials that in a dictatorship the final decision rests with a single individual and his orders are absolutely binding—legibus solutus—a subordinate could not question such orders. A definite attempt was made to show that all orders emanated from Hitler, all others were only led, and that Germans are trained to the duty of the strictest obedience. Much repugnance was shown, since the judges at the trials were appointed only from the Allies. Two of the legal authorities who had already been designated as prosecutors at the trial, and one who was to become judge, were selected to draw up the Charter of the very court in which they were to function. There seemed to be one law for the victors and one for the vanquished, a victor’s justice. Field Marshal Viscount Montgomery said that the trials made the waging of unsuccessful war a crime, for the generals of the defeated side would be tried and then hanged.
Associate Justice of the Supreme Court Robert H. Jackson, the Chief Prosecutor for the United States at the War Trials, in a report to the President in June 1945, took the opposite view in the following summary:
International law is more than a scholarly collection of immutable principles. It is an outgrowth of treaties or agreements between nations and of accepted customs. But every custom has its origin in some single act, and every agreement has to be originated by the action of some state. Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has its right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened International Law. International Law is not capable of development by legislation, for there is no continuously sitting International Legislature. Innovations and revisions in International Law are brought about by the action of governments designed to meet a change in circumstances. It grows, as did the Common Law, through decisions reached from time to time in adapting settled principles to new situations. Hence, I am not disturbed by the lack of precedent for the inquiry we propose to conduct. After the shock of civilization of the last World War, however, a marked reversion to the earlier and sounder doctrines of International Law took place. By the time the Nazis came to power it was throughly established that launching an aggressive war or the institution of war by treachery was illegal, and that the defense of legitimate warfare was no longer available to those who engaged in such an enterprise. It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal.
In his introductory statement at the trial, he further clarified the stand the Tribunal would take on individual responsibility:
The Charter also recognizes individual responsibility on the part of those who commit acts defined as crimes, or who incite others to do so, or who join in a common plan with other persons, groups or organizations to bring about their commission. The principle of individual responsibility for piracy and brigandage, which have long been recognized as crimes punishable under international law is old and well established. That is what illegal warfare is. This principle of personal liability is a necessary as well as logical one if International Law is to render real help to the maintenance of peace. An International Law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare. Those familiar with American history know that one of the compelling reasons for adoption of our Constitution was that the laws of the Confederation, which operated only on constitutent states, were found ineffective to maintain order among them. The only answer to recalcitrance was impotence or war. Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the Charter with the principle of personal responsibility.
Of course, the idea that a state, any more than a corporation, commits crimes is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.
The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.
Even the German Military Code provides that if the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefore. However, the obeying subordinate will share the punishment of the participant: (1) if he has exceeded the order given to him, or (2) if it was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression.”
Article 8 of the Charter stated, in part: “ . . . the fact that a defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility.” The Court interpreted this article to signify that a plea of superior order, “ . . . may be considered in mitigations of punishment if the Tribunal considers that justice so requires,” the true test when applying this article “is not the existence of the order, but whether moral choice was in fact possible.” Many high ranking military leaders felt that this article placed the military between the devil and the deep blue sea, and they asked the rather pointed question, where go the virtues of discipline and loyalty? As for duty and conscience—shall one obey an order or seek the shelter of some international law, as it will be interpreted, not by his countrymen or the Niirnberg Charter, but by the victor, with a totally different ethical standard? Who will decide where loyalty ends and conscience begins?
The military man, as a consequence of Article 8 of the Charter, is placed under a dual obligation, one to ordinary criminal law which prohibits certain acts on pain of punishment, and the second to military law which compels him to obey the orders of his superior. He may not even know the act is unlawful. All of his training has stressed duty of instant and unquestioned obedience.
There are two general situations:
1. The order appears regular and lawful, with no doubt to its lawfulness.
2. There is some reasonable doubt.
The American Articles of War clearly show what action the military should take under situation 1, since a soldier or officer who in time of war willfully disobeys a “command of his superior officer shall suffer death or such other punishment as a court martial may direct,” with the added proviso that the disobedience is to “any lawful command.”
The difficulty comes in determining whether the order is lawful or not, which is not always a simple task. One must look, necessarily, to the knowledge possessed, the discretion to act or to decline to act, and the motives of the individual. In ordinary criminal law, loyalty to a leader or a mistaken belief in duty has never been recognized as a defense to criminal responsibility. Under the Anglo-Saxon legal system, society recognizes that although life’s first principle is self- preservation, it will not tolerate the act of maintaining one’s life at the expense of another man’s life; therefore, the plea of not being able to disregard an order except with great danger is not a valid one. John A. Apple- man in Military Tribunals and International Crimes has stated that the merits of a defense based on a plea of this kind has been argued by lawyers ever since the advent of the war trials. In many cases of this kind at Nürnberg, the defendants testified that they feared disfavor if they failed to carry out an order. Others feared death or harm for themselves or their families. Suppose someone holds a gun to your head and threatens to shoot you unless you rob a bank. Would you feel like a criminal if you complied? Probably not. But suppose you were now ordered to kill your son. Most parents would disobey the order, even if it meant their death. But what if, on pain of the death of your son, you are ordered to commit an illegal act? It was found at the Trials that duress, in order to be held exempting must in fact render “moral choice” impossible; that the harm rendered by the illegal act was not greater than that which would ensue from noncompliance. The Tribunal held that “there must be a showing of circumstances such that a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong,” and, finally, that the accused was not acting “in accord with the principle and intent of the superior” who issued the order; however, to “rebel mentally” was not considered sufficient defense.
Appleman maintains that while “military necessity” will excuse certain types of conduct, it does not justify the abandonment of the rules of international law. Where the act is not justifiable either by private morality or by international law, military necessity is no defense, despite the reasoning of Prussian General Karl von Clausewitz.
It is clear that individuals have obligations which transcend those of a purely national character. A killing by a soldier is ordinarily deemed lawful only if he is acting under orders and if his act is in accordance with international law. He can defend neither upon the ground of superior orders nor of Act of State if the deed is a clear violation of international law. Thus he may be in a most painful position, that of being punished if he disobeys and of being prosecuted if he obeys.
A soldier can say, “The man was shot on orders of my sergeant.” The sergeant says, “The Captain issued a general order covering this situation.” The buck can be passed up until it finally falls upon the shoulders of a Führer, who communes only with the gods.
No question of guilt can arise if the order which the defendant claimed to have obeyed was a legal one. The validity of such a defense arises only where the order was illegal. It is interesting to observe, therefore, that Goebbels stated on 28 May 1944, in a German newspaper: “No international law of warfare is in existence which provides that a soldier who has committed a mean crime can escape punishment by pleading as his defense that he followed the commands of his superiors. This holds particularly true if those commands are contrary to all human ethics and opposed to the well-established international usage of warfare.”
Sir Hartley Shawcross, the Chief Prosecutor at the trials stated, “Political loyalty and military obedience are excellent things, but they neither require nor do they justify the commission of patently wicked acts. There comes a point where a man must refuse to answer to his leader if he is also to answer to his conscience.”
A resolution of the General Assembly of the United Nations assigned the task of codifying the Nürnberg principles to the International Law Committee elected by the Assembly. The Committee report of 12 December 1950, on the principles embraced at Nürnberg, included the following portions of interest in this paper.
Any person who commits or is an accomplice in the commission of an act which constitutes a crime under international law is responsible therefore and liable to punishment. . . .
The fact that domestic law does not punish an act which is an international crime does not free the perpetrator of such crime from responsibility under international law. . . .
The fact that a person who committed an international crime acted as Head of State or public official does not free him from responsibility under international law or mitigate punishment.
The fact that a person acted pursuant to an order of his Government or of a superior does not free him from responsibility under International Law. It may, however, be considered in mitigation of punishment if justice so requires.
The above codification fixes rather pointedly some of the responsibilities held by the military under existing and living international law. The precedent has been set, and like it or not, we must guide our actions according to its principles. Many of the responsibilities are obvious, others are not. Whether an order is lawful or not must be ultimately determined by international law principles and not necessarily by domestic law or the U. S. Articles of War. It therefore becomes most advisable for an officer to keep abreast of the changing and applicable provisions of international law so he can better understand some of the rather complex responsibilities in both giving and receiving orders.
As Herbert Wechsler, a Harlan Fiske Stone Professor of Constitutional Law at Columbia Law School said,
Some future victor may invoke this precedent against us, for if we are guilty of aggression we shall merit its invocation. If we are not, we can ask for no more—not alone for ourselves but for our cause—than the opportunity to establish our innocence that the Nürnberg defendants received.
Nürnberg was the assumption of an irrevocable obligation—to build a world of just law that shall apply to all, with institutions strong enough to carry it into effect. If we succeed in that great venture—and no nation can succeed alone— Nürnberg will stand as a cornerstone in the house of peace. If we fail, we shall hear from the German ruins an attack on the Nürnberg judgement as the second “diktat” of Versailles and, notwithstanding the goodness of our intentions, we may have no sufficient answer.