PROVISIONS OF WAR MANUALS

485 he may have felt no scruples that it was wrong or contrary to the laws of war. The probabilities are that every soldier who commits such an act would, if put on trial, plead the superior command of his officer as a defence, although he may have done it voluntarily and without any feeling of repugnance. Moreover, it would be impossible in many cases to establish the fact of a superior command. Where commands are issued in the form of written orders or proclamations there would not necessarily be any difficulty, but many military orders are verbal. Should the allegation of the accused that he acted under verbal orders be accepted when no proof is adduced? If the rule of the criminal law which puts the burden of proof on the State were followed in such cases, there would probably be few convictions, for the accused would usually allege that he acted under verbal orders and the prosecution would find it difficult to show the contrary. It is an axiom, at least of English and American law, that the plea of superior order is no defence to an illegal act.1 But is the rule applicable in the case of acts committed by soldiers during war, when those acts have been ordered by their commanders?

The British Manual of Military Law enumerates a list of acts which it denominates as war crimes and for the commission of which the authors shall be punished, but it adds that "members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their government or commander cannot be punished by the enemy.' "2 But the officers

1 See the early English case of Mostyn v. Fabrigas, 1 Cowper 180, decided by Lord Mansfield, and the American cases of Little v. Barreme, 2 Cranch, 170, 179, and Mitchell v. Harmony, 13 How. 115. In the first-mentioned American case Chief Justice Marshall said it was the duty of a soldier to execute the lawful orders of his superiors, but that he was personally liable for the execution of an illegal order. In the case of Mitchell v. Harmony the Supreme Court repudiated the doctrine that an officer may take shelter under the plea of superior command. Referring to an order given to a military officer by his commander to commit an illegal act, the court declared that the order was no justification to the person by whom it was executed. It added: "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."

2 Art. 443. This qualification is criticised by Bellot (Grotius Soc'y Pubs. II: 46) as one which "makes waste paper for the whole chapter" and he points out that it was not in any previous edition of the manual. It is also criticised by a writer in the Jour. of the Soc'y of Comparative Legislation and Int. Law (18: 154) as contrary to the rule of Anglo-American jurisprudence that an individual is responsible for his acts whether committed under order or not.

or commanders responsible for such orders may, if they fall into the hands of the enemy, be punished.

This provision also appears in the American Rules of Land Warfare,' but English authority generally is hardly in accord with this view. A belligerent, says Hall, "possesses the right to punish persons who have violated the laws of war, if they afterwards fall into his hands," and he makes no reservation in the case of those who have committed the violation by order of their commanders. Holland adopts the same view.3 Phillipson asserts that "the contention that a combatant's acts, no matter how heinous, outrageous, or abominable do not possess a criminal character if they are committed under orders from superior officers carried to its logical conclusion would lead to ineptitude and absurdity; the successive shifting of responsibility would exculpate every one until he reached the ultimate cause."4 Sir Frederick Smith, attorney general of England, was also of the opinion that the guilty offenders should not be permitted to plead the orders of their superiors and thus shift the responsibility ultimately to the head of the State. But Oppenheim approves the rule of the American and British manuals.5

Article 64 of the French criminal code lays down the rule that an act committed by a person who has been constrained by force is neither a crime nor a misdemeanor (délit). Professor Nast of the University of Nancy has expressed the opinion that this immunity would cover the case of a soldier who is compelled to commit an act in violation of the laws of war and that

1 Art. 366. "Individuals of the armed forces will not be punished for these offences in case they are committed under the 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."

2 International Law, 6th ed., p. 410.

Laws of War on Land, §§ 117-118.

♦ International Law and the Great War, p. 260. Compare also the following from Bartlett, an English writer in 35 Law Quar. Review, p. 191: "The great principle of national justice, which, while casting its cloak of immunity over the officer for acts committed while in the line of his duty does not strip him from the consequences of wanton, cruel, and unnecessary crime. Human justice is not blind to intentional and wilful wrongdoing because the offender may happen to wear a uniform or claim exemption under the orders of a superior. That would amount to the defence of duress compulsion - and no rule of law is better established than that the defence of duress is unavailing whenever the danger was not urgent or immediate."

• International Law, Vol. II, Sec. 253.

FRENCH VIEW AND PRACTICE

487

therefore German soldiers who were compelled by their commanders to participate in the spoliation of French industrial establishments and the removal of their machinery to Germany, although the acts were contrary to the Hague convention, were not liable to arrest and trial by the French courts.1 Professor Merignhac of Toulouse, however, adopts a contrary view and maintains that Article 64 of the penal code was never intended to shield soldiers who in time of war commit atrocities and who afterwards seek refuge under the plea that they were ordered by their commanders to commit them. "Article 64 of the French penal code," he says, "is a law for civilized people; it assumes a constraint exercised in isolated cases, and in fact its application is rare in the courts of criminal repression; it cannot therefore apply to the totality of punishable acts committed in war entire, because the public action would find itself paralyzed in case its exceptional character were transformed into a general rule. It would mean that all prosecutions against German prisoners would immediately cease, and at the conclusion of war no action could be taken against those who had not been captured, because they could invoke the excuse of constraint; and, as we have indicated, all subordinates and all chiefs, great and small, would escape punishment." This is the view adopted by the great majority of French jurists who have discussed the question. They maintain that every person who has any share in the commission of a criminal act during war the private soldier who commits it, the officer who delivers the order to him, the commander from whom it emanates and even the chief of State who is ultimately responsible may be tried and punished if found guilty. And the French military courts acted on this principle in all the cases that came before them during the late war. In every case where the plea of superior command was invoked the courts made short shrift of it and if the evidence established the guilt of the accused he was condemned, even when he produced conclusive proof that he acted under orders."

3

1 26 Revue Générale de Droit Int. Pub. (1919), p. 123.

2 24 Revue Générale de Droit Int. Pub. (1917), p. 53.

Renault, however, expressed no positive opinion on the question and he appears to have been in doubt as to whether the individual soldier should be held responsible for criminal acts committed under orders. 25 Rev. Gén., p. 27. Some cases are cited by Merignhac in 24 Rev. Gén. (1917), p. 53.

Whether or not the individual soldier should be held responsible and punished in such cases there will always, perhaps, be a difference of opinion; but concerning the general proposition that commanders upon whom the responsibility for criminal acts in violation of the generally recognized laws of war should be held accountable and punished by the adversary in case they fall into his hands, there ought to be no dissent.1 If it were generally understood in the future that commanders would be so held responsible, it is probable that such orders as that issued by general Stenger directing his men to take no prisoners would be rarer. Provision might well be made for collecting information concerning acts in violation of the laws of war and for keeping registers of the names of officers guilty of issuing orders under which such acts are committed, and the victorious belligerent should require in the treaty of peace the surrender of such persons for trial and punishment.

§ 589. Responsibility of Chiefs of State. The principle that military officers should be held personally responsible for orders in violation of the laws and customs of war, if pushed to its logical limits, would render commanders-in-chief, that is, heads of States, liable for illegal acts for which they are responsible, directly or indirectly. Very early during the late war jurists in both France and England advocated the holding of the German Emperor, in case Germany were defeated, responsible for acts committed by his military and naval forces in violation of the criminal law and the laws of war. A French officer, speaking before the French Society of Social Economy in 1915, asserted that "it was necessary to go beyond the individual, the actual author of the act complained of; it was necessary to search for the chiefs; from chief to chief we must go to the top. In the German army there is one supreme chief, the Emperor. Let us know, for example, whether the act of general Stenger, who was accused of having issued a proclamation

1 Some writers, however, think it would be preferable to defer the trial of commanders, chiefs of State, and high functionaries charged with such crimes to an international criminal court rather than to try them before a national court, and it has been suggested that the Hague tribunal of arbitration might be organized into a court for this purpose. This procedure, it is argued, would insure greater impartiality and would be more in accord with the principles of justice, but the realization of the proposal would not be without practical difficulties. Compare the remarks of Professor Pic in 23 Rev. Gén. (1916), p. 267.

RESPONSIBILITY OF HEADS OF STATES

489

ordering his troops to give no quarter, was ever disavowed. We do not know whether it was or not; but it is certain that this proclamation reached the ears of the Kaiser and it is he who is responsible." Professor Merignhac approved the suggestion. "It is evident," he said, "that the Kaiser knew it, and perhaps one may even say, ordered it. Of course he did not give directly all the barbarous orders issued by his generals, but the latter knew that their acts had his approval; they were only the executors, high or low, of measures decreed by their master, who felicitated, decorated, or promoted those who distinguished themselves by their ferocity."2 Professor Weiss, an eminent member of the law faculty of the University of Paris, took the same view in an address before the General Prison Society of France in 1915. "I think," he said, "that not only the direct immediate offenders should be held responsible, but that we must go to the top; we must pass over the heads of the primary offenders, to the chiefs, to those of whom the soldiers and officers have been only the servants and valets."3 Professors Larnaude and Lapradelle, in an elaborate report to the French government on the question of the penal responsibility of the ex-Emperor, advocated that he be held personally responsible for the crimes committed by his armed and naval forces in violation of the laws and customs of war and that he be placed on trial before an international tribunal. "Modern 1 Réforme Sociale, 1915, p. 203.

24 Rev. Gen. de Droit Int. Pub., p. 51. As evidence of the Emperor's responsibility, Merignhac quotes the following from a letter written by William to Francis Joseph early in the war: "My soul is torn; it is necessary to put everything to fire and blood; to slaughter men and women, the children and the aged; not to leave standing a tree or a house. By means of these measures of terrorism, the only ones capable of striking a people so degenerate as the French, we may finish the war before two months. If I respect humanitarian considerations, the war may be prolonged for several years. In spite of my repugnance I have therefore chosen the first system, which will spare much blood, although in appearance the contrary may seem to be the case." This letter was published in No. 318 of the Bulletin de l'Euvre des Ecoles d'Orient.

3 39 Revue Pénitentiaire (1915), p. 457. The commission of the French Chamber of Deputies which was charged with reporting on the bill for the ratification of the treaty of peace with Germany declared in its report that "among the responsibilities incurred, none is higher and more grave than that of the German Emperor. He should be judicially prosecuted for having violated the laws and customs of war. Supreme chief of the armed forces on land and sea, the 'lord of war' not only knew but tolerated and encouraged the crimes which his troops committed on land and sea. History will demand that he be held responsible for these acts." Text of the report in Barthou, Le Traité de Paix, p. 49.