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Superior orders - Wikipedia, the free encyclopedia
The trial of Peter von Hagenbach
See also: Command responsibility
Hagenbach on trial, from Berner Chronik des Diebold Schilling dem Älteren
In 1474, in the trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire, there was the first known “international” recognition of commanders’ obligations to act lawfully.[5][6] Hagenbach offered the defense that he was just following orders, but this defense was rejected and he was convicted of war crimes and beheaded.[7]
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.[7][8] 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[5][9] from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman Empire had given Breisach.[10] This defense was rejected.
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.[11] 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.[12] 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.[13]
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.
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'.[14] 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.[15])
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.[16] 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.)
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.
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.[17] 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.[18]
In 1996, the superior orders defense was successfully used by Erich Priebke, although the verdict was appealed and he was later convicted.[citation needed] It was used with varying degrees of success by those involved in the Hostages Trial.[citation needed]
