SUPERIOR ORDERS AND WAR CRIMES An Associated Press dispatch from Leipzig, Germany, dated June 4, 1921, announces the acquittal of Lieutenant Karl Neumann, charged with the sinking of the British hospital ship Dover Castle by a German submarine under his command. The trial by the German court at Leipzig of Neumann and a few other Germans charged with war crimes, took place as the result of correspondence between the Allies and Germany regarding the execution of the penalty clauses of the Treaty of Versailles (Articles 228 to 230, inclusive). Lieutenant Neumann, it appears, was in command of a German submarine which sank the British hospital ship Dover Castle. At the trial it appears that Neumann admitted sinking the Dover Castle in clear weather, but pleaded that he was acting under instructions from the German Government, as the vessel was not keeping to a special channel designated by Germany. It was established to the satisfaction of the court that the submarine commander had acted clearly within the instructions given him by his superiors, and he was for that reason exonerated from criminality. It is reported that in announcing the acquittal of Neumann, the presiding judge stated that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors; that the accused had carried out his orders without in any way exceeding them, and that there was nothing to prove that he had been guilty of particular cruelty as alleged in the Allies' accusations. The presiding judge added that, in the opinion of the court, there was not the slightest doubt that Lieutenant Neumann's orders were justified. This decision will no doubt be disappointing to those who expected that the penalty clauses of the Treaty of Versailles would result in at least partial retribution for the high crimes and misdemeanors against civilization and humanity committed by the German naval and land forces in the conduct of the war. These clauses were inserted in the treaty under great pressure from the populations in the belligerent countries who had been the chief sufferers from the barbarous conduct of the war. In fact, Mr. Lloyd George was returned to power in the parliamentary elections of 1918 upon a platform the principal plank of which was the punishment of those responsible for the war and for the crimes committed during the war. The infliction of police court sentences by a German court on a few subordinates in lieu of the condign punishment of the real culprits higher up offers little satisfaction to those who believed that the penalty clauses of the Treaty of Versailles were a step in the right direction in providing a sanction for that branch of international law dealing with the laws of war. The acquittal of Lieutenant Neumann of an act clearly prohibited by international treaty and reprehensible to the elementary instincts of humanity, on the specific ground that he was not responsible because he acted within orders of his Government makes it, of course, impossible to punish any of the submarine commanders who acted in accordance with the instructions of their government. The same principle will logically apply to the German officers who were guilty of the violations of the laws of land warfare and those who wantonly devastated Belgium and France and Serbia, and shamefully deported their populations, can doubtless establish that these acts of barbarism were committed by orders of those higher up. But the failure to carry out the penalty clauses of the Treaty of Versailles, even in the small measure in which it has been attempted, is not to be attributed entirely to the German judges at Leipzig. It was only necessary for Lieutenant Neumann to turn to the rules of war issued by the British Government to justify his plea that he was not responsible because he acted under superior orders. The British Manual of Military Law, issued in 1914 and reprinted in 1917, after enumerating all the possible categories of war crimes, provides as follows in Article 443: Members of armed forces who commit such violations of the recognized rules of warfare as are ordered by their government or by their commander are not war criminals and cannot therefore be punished by the enemy. He may punish the officials or commanders responsible for such order if they fall into his hands, but otherwise he may only resort to the other means of obtaining redress. The foregoing article was substantially copied into the Rules of Land Warfare, approved by the General Staff of the United States Army and published on April 25, 1914, for the information and government of the armed land forces of the United States. Article 366 reads as follows: Individuals of the armed forces will not be punished for these offences in case they are committed under orders or sanction of their government or commanders. 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. These articles appear to contain a new and untried provision inserted in the war manuals for the first time in 1914.1 The rule does not represent any decided weight of opinion outside of military circles. Among the writers on international law, Professor Oppenheim seems to be alone in defending it. In Section 253 of his work on International Law (1912), he says: Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent government concerned. If members of the armed forces commit violations by order of their government, they are not war criminals and may 1 See Bellot, "War Crimes," Papers read before the Grotius Society, Vol. II, p. 47, who states that the proviso occurs in no previous edition of the British Manual of Military Law. Neither is such a proviso found in Lieber's Instructions for the Government of Armies of the United States in the Field, which were supplanted by the present Rules of Land Warfare. not be punished by the enemy; the latter may, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy. The rule is vigorously assailed by Phillipson in his International Law and the Great War (1915), who replies: It has been contended in some quarters that a combatant's acts, no matter how heinous, outrageous, and abominable, do not possess a criminal character if they are committed under orders from superior officers. But this argument carried to its logical conclusion would lead to ineptitude and absurdity; the successive shifting of responsi bility would exculpate every one until we reached the ultimate cause-in the case of Germany let us say, for example, the Kaiser. Can it, then, be seriously held that several millions of men may act contrary to law established, and perpetrate horrors and atrocities, and that they should be considered entirely guiltless on the ground that they carried out the admittedly illegitimate commands of their supreme authority? The safety and stability of a nation or of a family of nations are incompatible with such an exaggerated and preposterous notion of vicarious responsibility. In further illustration of this conflict of opinion, reference may be made to the paper read by Commander Sir Graham Bower, late of the Royal Navy, before the Grotius Society of London, on May 27, 1915,2 in which he denies that the submarine officers and crews captured by Great Britain can be punished for sinking merchant ships contrary to the laws of war and humanity, because the German Government accepted responsibility for their acts. The opposite view was maintained before the same Society on March 24, 1916, by Dr. Hugh H. L. Bellot, who demanded that not only the instigators but also the actual perpetrators of the more heinous offences against the usages of war be brought to trial. Dr. Bellot cited the treatment of Captain Fryatt, convicted of a war crime by a German court martial and executed as a war criminal on July 27, 1916, as a refutation of the German contention that obedience to superior orders renders immune the perpetrator of a war crime.3 Judicial opinion, in so far as it exists on the subject, also seems to be divided. The question of the responsibility of a military officer in damages for the capture of a vessel under an illegal order from the Navy Department during the limited hostilities between France and the United States in 1799, came up for decision by the Supreme Court of the United States in 1804, in the case of the Flying Fish (2 Cranch 170), and Chief Justice Marshall, after weighing carefully the principle which should govern this 2 "The Laws of War; Prisoners of War and Reprisals," Papers read before the Grotius Society, Vol. I, p. 23. 3 Ibid., Vol. II, pp. 54-55. For the trial of Captain Fryatt, see the editorial by J. B. Scott in this JOURNAL, Oct., 1916 (Vol. 10), p. 865. For French practice during the war, and opinion on the subject, see J. W. Garner, "Punishment of offenders against the laws and customs of war," this JOURNAL, Jan., 1920 (Vol. 14), p. 70 at p. 83 et seq. class of cases, followed the common law rule that an officer who commits an unlawful act pursuant to an illegal order is not protected by such an order from personal responsibility. The Chief Justice said: I confess, the first bias of my mind was very strong in favor of the opinion, that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which, indeed, is indispensably necessary to every military system, appeared to me strongly to imply the principle, that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass. A contrary view was later taken by Judge Story, speaking for the same court, in a case which involved the responsibility of a soldier who disobeyed a valid order on the ground that he regarded it as illegal. In Martin v. Mott, 1827 (12 Wheaton 28), Judge Story held that, The service is a military service, and the command, of a military nature; and in such cases, every delay, and every obstacle to an efficient and immediate compliance, necessarily tend to jeopardize the public interests. While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished, without the means of resistance. The subject is discussed by Dicey in connection with the suppression of riots and rebellions. He concludes that the matter is one which has never been absolutely decided, but quotes with approval the following passage from Mr. Justice Stephens' History of Criminal Law of England, pp. 205-206, as nearly correct a statement of the rule as the authorities make it possible to provide: The doctrine that a soldier is bound under all circumstances whatever to obey his superior officer would be fatal to military discipline itself, for it would justify the private in shooting the colonel by the orders of the captain, or in deserting to the enemy on the field of battle on the order of his immediate superior. I think it is not less monstrous to suppose that superior orders would justify a soldier in the massacre of unoffending civilians in time of peace, or in the exercise of inhuman cruelties, such as the slaughter of women and children, during a rebellion. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. The inconvenience of being subject to two jurisdictions, the sympathies of which are not unlikely to be opposed to each other, is an inevitable consequence of the double necessity of preserving on the one hand the supremacy of the law, and on the other the discipline of the army.4 Birkhimer states that while such a rule may sometimes appear to be unjust, "it is based on public policy and flows from the consideration that society should be protected from the evil-doer, who may not be permitted to evade the consequences of his unlawful acts by pleading the orders of anyone, for no one has a right either to set the laws at defiance or authorize another to do so. Still," he says, "as regards members of the military profession, the workings of the rule are liable to be so harsh that judges are moved sometimes not only to temper justice with great mercy, but, so far as practicable, to transfer the responsibility to the officer who issued the illegal order." "No wonder," he continues, "that courts, when they pass judgment in such cases, yield a willing ear to the promptings of humanity, and place, so far as possible, responsibility for violations of the law upon superiors who initiate them, rather than upon subordinates whose actions, in carrying into execution the orders of those whom the law has placed over them, are wholly involuntary." 5 The same author thereupon draws the following distinction between the responsibility of superiors and subordinates: A subordinate stands in a different position from the superior when he obeys, and may be absolved from liability for executing an order which it was criminal to give. The question is, Had accused reasonable cause for believing in the necessity of the act which is impugned? and in determining this point a soldier may take the orders of the person in command into view as proceeding from one who is better able to judge and well informed; and, if the circumstances are such that the command may be justifiable, he should not be held guilty for declining to decide that it is wrong, with the responsibility incident to disobedience, unless the case is so plain as not to admit of a reasonable doubt. A soldier consequently runs little risk in obeying any order which a man of common sense so placed would regard as warranted by the circumstances. At the close of the Civil War in the United States, the indignation aroused in the North by the treatment of prisoners of war at Andersonville, Georgia, resulted in the trial of the commandant of that prison, Henry Wirz, for crimes which it was alleged were committed by him or by his orders. One of the pleas of the accused was that he merely acted as a subordinate in carrying out the orders of the commander of the post. The Judge Advocate admitted that the accused acted under orders, but replied, "A superior officer cannot order a subordinate to do an illegal act, and if a subordinate obey such an order and disastrous consequences result, both the superior and the subordinate must answer for it. General Winder could no more command the prisoner to violate the laws of war than could the prisoner do so without orders." Wirz was convicted on 4 Dicey, Law of the Constitution, pp. 301-302. 5 Birkhimer, Military Government and Martial Law, pp. 561-562. |