|
| |
"Obeying Superiors' Orders": Who Is Responsible?
From: Cambridge University Press
| By:
William A. Schabas |
EDITOR'S INTRODUCTION |
From the Second World War to events in Rwanda and the Balkans in the 1990s, humans' appetite in wartime to commit atrocities against each other seems almost insatiable. When peace follows, the question of just who is to blame can be a difficult one; after all, maintaining discipline depends almost entirely on the willingness of subordinates to obey orders. In this extract from Genocide in International Law, William A. Schabas combines historical fact with legal insight in search of the answer. |
 espite precedents from the Leipzig trials, during the Second World War the conditions under which obedience to superior orders could be invoked as a defence to war crimes remained uncertain. Violation of the laws and customs of war as the result of an order from a superior was, from the standpoint of custom, excusable only to the extent that the offender did not know that the order was illegal, and furthermore to the extent that the order was not manifestly illegal. Nevertheless, in 1944, the United States and the United Kingdom modified their military manuals in order to limit abusive recourse to the defence. To dispel any ambiguity, a provision of the Charter of the International Military Tribunal at Nuremberg excluded the defence altogether. Despite the absence of a comparable provision in Control Council Law No. 10, the post-war military tribunals generally applied the prohibition. Assessing the treatment of the question by the post-war courts, Geoffrey Best wrote: "Justice in the event was found to require sympathetic consideration of the 'superior orders' plea when made by underlings in all but the most atrocious cases but the plea was indignantly dismissed when offered by officers and officials in the higher echelons" (Geoffrey Best, War and Law Since 1945, Oxford, 1994, p. 190). |
Drafting history
In Axis Rule in Occupied Europe, Raphael Lemkin recommended that: "In order to prevent the invocation of the plea of superior orders, 'the liability of persons who order genocidal practices, as well as of persons who execute such orders, should be provided expressly by the criminal codes of the respective countries'" (Raphael Lemkin, Axis Rule in Occupied Europe, Washington, 1944, pp. 93-4). The Saudi Arabian draft stated: "An allegation that any act of genocide ... has been committed under order of a superior authority shall not be available as a defence." The Secretariat draft contained in article V: "Command of the law or superior orders shall not justify genocide." The Secretariat considered an express provision to be advisable, given lingering confusion about circumstances where the defence might be invoked. Its proposal received general support from States and non-governmental organizations commenting on the draft. Only Siam questioned whether the article should "be more carefully considered since it affects the general principle in criminal law that a person should not be punished for any act committed in carrying out a lawful command" (UN Doc. E/623/Add.4). |
In the Ad Hoc Committee, the Soviet Union strongly supported the Secretariat's provision on superior orders, noting it was consistent with the precedent not only of the Nuremberg Tribunal but of all the courts established in the occupied zones after the defeat of Germany and Japan. But the United States said an express text was unnecessary because the principle had been set out in article 8 of the Nuremberg Charter, accepted since 1945 as an "established rule." The United States favoured leaving the matter "to the judgment of the court in the light of the usual rules of law." Some States had more substantive objections. Venezuela said its constitution provided that those who act on superior orders are not subject to punishment. The Venezuelan representative felt the draft "might be interpreted as an incitement to disobedience and insubordination, since officials might invoke its provisions to question superior orders. He feared that States might hesitate to sign the convention if this provision were retained." China agreed, citing the danger of injustice, and saying that Nuremberg was a special case. Lebanon, too, invoked the danger of injustice. (UN Doc. E/AC.25/SR.9, p. 8; E/AC.25/SR.18, pp. 5-8.) |
Secretariat official Egon Schwelb reminded the Committee that article 8 of the Nuremberg Charter excluded the defence, noting that two subsequent General Assembly resolutions had endorsed the Nuremberg Principles. He also pointed out that even minor officials were being prosecuted under Control Council Law No. 10, which had no such provision. The United States disagreed, arguing that the General Assembly resolutions did not confirm the Secretariat's interpretation. Ultimately, the Soviet proposal on superior orders and command of the law was rejected. Poland reacted sharply, saying it took no responsibility for the present draft, as the object of such a convention was to fill in the gaps in the principles established by the Nuremberg trials. "The exclusion of a provision stating that superior orders and command of the law could not justify the crime of genocide is a definite regression both as concerns the Charter of Nurnberg and the accepted principles of international law," said Aleksandr Rudzinski of Poland. He asked that this statement, made in the name and on behalf of his government, be recorded verbatim in the report of the Ad Hoc Committee (UN Doc. E/AC.25/SR.18, pp. 9-10). |
In the Sixth Committee, the Soviet Union tabled an amendment based on article 8 of the Charter of the International Military Tribunal that said: "Command of the law or superior orders shall not justify genocide" (UN Doc. A/C.6/215/Rev.1). Yugoslavia, France and Czechoslovakia expressed support. Manfred Lachs of Poland noted that the Soviet proposal did not eliminate other possible defences, "such as coercion and the impossibility of refusing to act, which could play an important part in determining the responsibility of the accused" (UN Doc. A/C.6/SR.92). |
But there were again objections from States whose legal systems admitted the defence. Venezuela argued that denying the defence eliminated the notion of intent, an essential element of the crime of genocide. Venezuela gave the example of a group of soldiers who opened fire on a political group, believing that they were suppressing disturbances, whereas the officer giving the order wanted to destroy the group. Jean Spiropoulos agreed, noting the principle was not acknowledged in all legal systems. Although recognized at Nuremberg, it was better to let the judge decide in each individual case whether there was intent, he said. The United States said that such a provision would restrict the judge's freedom of action and might result in the conviction of innocent parties. "There were therefore grounds for doubt as to whether it was wise to include in the Convention so inflexible a clause ... or whether it would not be more advisable first to permit international law to develop in the matter," said John Maktos. Sweden, the Dominican Republic and Belgium expressed similar views (UN Doc. A/C.6/SR.92). |
Some States declared that while agreeing in principle with the Soviet amendment, they would abstain or vote against to ensure the Convention would have broad appeal. In the end, the Soviet amendment was rejected in a recorded vote. Ecuador said that, while it had voted against, it did not consider the principle to be invalid. The Netherlands explained its negative vote, saying the matter was premature, and should be addressed by the International Law Commission in formulating the Nuremberg Principles. |
Gestapo leader Adolf Eichmann invoked obedience to superior orders as a defence, but this was dismissed by the District Court of Jerusalem on the basis of a clause in the 1950 law on genocide prosecutions to the contrary. On appeal, the Israeli Supreme Court demonstrated that the statutory prohibition was consistent with evolving international law. |
Other instruments
The statutes of the ad hoc Tribunals excluded entirely the defence of superior orders: "The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the [Tribunal] determines that justice so requires" (see Christopher L. Blakesley, "Atrocity and Its Prosecution," in T. L. H. McCormack and G. J. Simpson, The Law of War Crimes, The Hague, Boston and London, 1997, pp. 219-20). The Rome Statute of the International Criminal Court is slightly more equivocal. Rather than exclude the defence altogether, as in the other models, it codifies judicial pronouncements on the subject. Article 33 (Superior orders and prescription of law) provides: |
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.
|
It appears that the effect of paragraph 2 is to eliminate the defence of superior orders in cases of genocide. |
The International Law Commission's draft Code of Crimes excludes the defence of superior orders: "The fact that an individual charged with a crime against the peace and security of mankind acted pursuant to an order of a Government or a superior does not relieve him of criminal responsibility, but may be considered in mitigation of punishment if Justice so requires." According to the commentary: "a governmental official who plans or formulates a genocidal policy, a military commander or officer who orders a subordinate to commit a genocidal act to implement such a policy or knowingly fails to prevent or suppress such an act and a subordinate who carries out an order to commit a genocidal act contribute to the eventual commission of the crime of genocide. Justice requires that all such individuals be held accountable" ("Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May-26 July 1996," pp. 31, 76). This reiterates expressions of the same principle by the International Law Commission in the Nuremberg Principles and in its 1954 draft Code of Offences. |
Distinction with duress
Difficulties with the defence sometimes arise because of confusion with the defence of duress. Article 8 of the Nuremberg Charter, which seemingly forbids any recourse to superior orders as a defence, disturbed many jurists because it imposed a form of "absolute liability." It was, accordingly, interpreted by the Nuremberg Tribunal to allow a defence of superior orders under exceptional circumstances: |
The provisions of this article are in conformity with the law of all nations. That a soldier was ordered to kill or torture in violation of the international law of war has never been recognized as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible. (France et al. v. Goering et al., (1946) 22, Trial of the Major War Criminals before the International Military Tribunal 203, p. 466.) |
The Tribunal implied that superior orders might possibly be a defence where there was an absence of moral choice. The Nuremberg Principles, endorsed by the General Assembly in 1950, confirmed the International Military Tribunal's interpretation of article 8 and its qualified prohibition of the defence of superior orders. In the Einsatzgruppen case, the American Military Tribunal applied the dictum of the International Military Tribunal, rejecting the defence of superior orders because of the absence of compulsion or duress. |
But were any of the defendants coerced into killing Jews under the threat of being killed themselves if they failed in their homicidal mission? The test to be applied is whether the subordinate acted under coercion or whether he himself approved of the principle involved in the order. If the second proposition be true, the plea of superior orders fails. The doer may not plead innocence to a criminal act ordered by his superior if he is in accord with the principle and intent of the superior. When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under superior orders. (United States of America v. Ohlendorf et al. ("Einsatzgruppen trial"), (1948) 4, Law Reports of the Trials of War Criminals 411 (United States Military Tribunal), p. 480.) |
A plea of superior orders in the absence of evidence of duress was inadmissible. In the alternative, evidence of superior orders could be relevant in establishing the factual basis of a plea of duress, although it would alone be insufficient. Thus, in practice, the two pleas overlap, to the extent that an individual is given an order, and then told that he or she will be killed if the order is not carried out. But where obedience to an order is argued in the absence of any suggestion of real duress, the issue of "moral choice" can hardly arise. The individual offender may be subject to disciplinary measures or some other form of sanction, but nothing that could conceivably approach a threshold of moral choice in cases dealing with genocide. |
In Erdemovic, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia reflected the views of the International Military Tribunal and the International Law Commission's Nuremberg Principles, recognizing the distinction between duress and superior orders and noting that "the complete defence based on moral duress and/or a state of necessity stemming from superior orders is not ruled out" (Prosecutor v. Erdemovic (Case No. IT-96-22-T), Sentencing Judgement, 29 November 1996, para 19). On appeal, Judge Gabrielle Kirk McDonald said she would take exception if the Trial Chamber was attempting to create a "hybrid defence" out of superior orders and duress. According to Judge McDonald, obedience to superior orders could be considered "merely as a factual element in determining whether duress is made out on the facts" (Prosecutor v. Erdemovic (Case No. IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah, 7 October 1997, para 34). Rather than nuance the issue of superior orders, in the manner of the International Military Tribunal, Judge McDonald stated unequivocally that "obedience to superior orders per se has been specifically rejected as a defence in the Statute." Judge Antonio Cassese, who dissented on the merits of the appeal, shared the majority opinion as to the distinction between superior orders and duress: |
It is also important to mention that, in the case-law, duress is commonly raised in conjunction with superior orders. However there is no necessary connection between the two. Superior orders may be issued without being accompanied by any threats to life or limb. In these circumstances, if the superior order is manifestly illegal under international law, the subordinate is under a duty to refuse to obey the order. If, following such a refusal, the order is reiterated under a threat to life or limb, then the defence of duress may be raised, and superior orders lose any legal relevance. Equally, duress may be raised entirely independently of superior orders, for example, where the threat issues from a fellow serviceman. Thus, where duress is raised in conjunction with manifestly unlawful superior orders, the accused may only have a defence if he first refused to obey the unlawful order and then only carried it out after a threat to life or limb. (Prosecutor v. Erdemovic (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, 7 October 1997, para 15.) |
Conclusion
In conclusion, an order to commit genocide, or to participate in the crime in whatever fashion, must be deemed manifestly illegal. Whether or not there is an applicable statutory provision, as in the case of the ad hoc tribunals and the International Criminal Court, superior orders alone in the absence of duress is no plea to a charge of genocide. The absence of a provision in the Convention neither confirms nor rejects the status of superior orders as a defence. Scrutiny of the travaux indicates that several of the States voting against the inclusion of a provision did not support the admissibility of such a defence but preferred silence on the subject in the interests of compromise with those who held a different view. Subsequent authorities, and specifically the case law of the International Criminal Tribunal for the Former Yugoslavia, as well as the various efforts at codification including the Rome Statute, have clarified any doubt on the subject. |
|
| |
