Superior Orders

Those of the defendants who admit participation in the mass killings which are the subject of this trial, plead that they were under military orders and, therefore, had no will of their own. As intent is a basic prerequisite to responsibility for crime, they argue that they are innocent of criminality since they performed the admitted executions under duress, that is to say, Superior Orders. The defendants formed part of a military organization and were, therefore, subject to the rules which govern soldiers. It is axiomatic that a military man's first duty is to obey. If the defendants were soldiers and as soldiers responded to the command of their superiors to kill certain people, how can they be held guilty of crime? This is the question posed by the defendants. The answer is not a difficult one.

The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery. It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do. A very simple illustration will show to what absurd extreme such a theory could be carried. If every military person were required, regardless of the nature of the command, to obey unconditionally, a sergeant could order the corporal to shoot the lieutenant, the lieutenant could order the sergeant to shoot the captain, the captain could order the lieutenant to shoot the colonel, and in each instance the executioner would be absolved of blame. The mere statement of such a proposition is its own commentary. The fact that a soldier may not, without incurring unfavorable consequences, refuse to drill, salute, exercise, reconnoiter, and even go into battle, does not mean that he must fulfill every demand put to him. In the first place, an order to require obedience must relate to military duty. An officer may not demand of a soldier, for instance, that he steal for him. And what the superior officer may not militarily demand of his subordinate, the subordinate is not required

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to do. Even if the order refers to a military subject it must be one which the superior is authorized, under the circumstances, to give.

The subordinate is bound only to obey the lawful orders of his superior and if he accepts a criminal order and executes it with a malice of his own, he may not plead Superior Orders in mitigation of his offense. If the nature of the ordered act is manifestly beyond the scope of the superior's authority, the subordinate may not plead ignorance to the criminality of the order. If one claims duress in the execution of an illegal order it must be shown that the harm caused by obeying the illegal order is not disproportionally greater than the harm which would result from not obeying the illegal order. It would not be an adequate excuse, for example, if a subordinate, under orders, killed a person known to be innocent, because by not obeying it he himself would risk a few days of confinement. Nor if one acts under duress, may he, without culpability, commit the illegal act once the duress ceases.

The International Military Tribunal, in speaking of the principle to be applied in the interpretation of criminal Superior Orders, declared, that:

"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."

The Prussian Military Code, as far back as 1845, recognized this principle of moral choice when it stated that a subordinate would be punished if, in the execution of an order, he went beyond its scope or if he executed an order knowing that it "related to an act which obviously aimed at a crime."

This provision was copied into the Military Penal Code of the kingdom of Saxonia in 1867, and of Baden in 1870. Continuing and even extending the doctrine of conditional obedience, the Bavarian Military Penal Code of 1869 went so far as to establish the responsibility of the subordinate as the rule, and his irresponsibility as the exception.

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The Military Penal Code of the Austro-Hungarian Monarchy of 1855 provided:

"Art. 158:
A subordinate who does not carry out an order is not guilty of a violation of his duty of subordination if:

(a) the order is obviously contrary to loyalty due to the Prince of the Land;

(b) if the order pertains to an act or omission in which evidently a crime or an offence is to be recognized."

In 1872 Bismarck attempted to delimit subordinate responsibility by legislation, but the Reichstag rejected his proposal and instead adopted the following as Article 47 of the German Military Penal Code:

"Art. 47:
If through the execution of an order pertaining to the service, a penal law is violated, then the superior giving the order is alone responsible. However, the obeying subordinate shall be punished as accomplice:

1) if he went beyond the order given to him, or

2) if he knew that the order of the superior concerned an act which aimed at a civil or military crime or offense."

This law was never changed, except to broaden its scope by changing the word "civil" to "general", and as late as 1940 one of the leading commentators of the Nazi period, Professor Schwinge wrote:

"Hence, in military life, just as in other fields, the principle of absolute, i.e. blind obedience, does not exist."
(Emphasis supplied)

Yet, one of the most generally quoted statements on this subject is that a German soldier must obey orders though the heavens fall. The statement has become legendary. The facts prove that it is a myth. When defendant Seibert was on the stand, his attorney asked him:

"Witness, do you remember a proverb said by a German Kaiser concerning the carrying out of orders by soldiers?"

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And the defendant replied:

"I do not know whether it was William I or William II, but certainly on Kaiser-Emperor used the expression, 'If the military situation or the entire situation makes it necessary a soldier has to carry out an order, even if he has to shoot his own parents'."

The defendant was then asked whether, in the event he received such an order, he would execute it. To the surprise of everybody he replied that he did not know. He declined to answer until he should have time to consider the problem. The Tribunal allowed him until the next morning to deliberate, and then the following ensued:

"Q. Now, if in accordance with this declaration by the Chief of the State of the German Empire at that time, the military situation made it necessary for you -- after receiving an order, -- to shoot your own parents, would you do so?

A. I would not do so.

Q. Then there are some orders which are issued by the Chief of State which may be disobeyed?

A. I did not regard this as an order by the Chief of State but as a symbolic example towards the whole soldiery how far obedience had to go, but never actually asking a son to shoot his own parents. I imagine it only as follows, Your Honor: if I am an artillery officer in the war and I have to fire at a very important sector, which is decisive for the whole military situation and I received the order to fire at a certain village and I know that in this village my parents are living, then I would have to shoot at this village. This is the only way in which I can imagine this order, but never -- it is inhuman -- to ask a son to shoot his parents.

Q. ..So therefore, if you received such an order coming down the line, you would disincline to obey it? You would not obey it?

A. I would not have obeyed such an order.

Q. Suppose the order came down for you to shoot the parents of someone else, let us say, a Jew and his wife. And in your view you saw the children of these parents. Now, it is established beyond any doubt that this Jewish father and Jewish mother have not committed any crime -- absolutely guiltless, blemishless. The

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only thing that is established is that they are Jews. And you have this order coming down the line to shoot them. The children are standing by and they implore you not to shoot their parents. Would you shoot the parents?

A. I would not shoot these parents."

Then in summing up, the witness was asked?

"And, therefore, as a German officer, you now tell the Tribunal that if an order was submitted to you, coming down the line militarily to execute two innocent parents only because they were Jews, you would refuse to obey that order?"

And the answer was:

"I answered your example affirmatively, I said 'Yes, I could not have obeyed'."

Although Defense Counsel's query intended to establish the utter helplessness of a German soldier in the face of a superior command, the inquiry finally resulted in the defendant's declaring that he would not only ignore the order of the supreme war lord to shoot his own parents, but also to shoot anybody else's parents. He thus demonstrated that under his own interpretation of German Military Law, he did have some choice in the matter of obeying Superior Orders. Why then did he participate in the execution of the parents of other people? Why did other defendants do the same if they had a choice, as the defendant Seibert indicated?

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Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 77 - 81 (original mimeographed copy)

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Electric Zen
Ken Lewis
April 10, 1998
Rev. 1.0