John Jones, some members of the crew of an American privateer were tried because, during the War of 1812, they stopped and searched a neutral Portuguese vessel on the high seas, assaulted the captain and crew, and stole valuables. In another well-known American case, The United States v. The order may palliate, but it cannot justify” the deed. Chief Justice Taney of the United States Supreme Court declared: “It can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. When later sued for the price of the goods, he claimed to have acted under orders of a superior officer. An American Army officer in Mexico illegally seized the goods of a trader in occupied territory. Harmony, a civil suit growing out of the Mexican War. The court declared that “every officer has a discretion to disobey order against the known laws of the land.” The American ViewĪ famous American case is that of Mitchell v. His plea that he was acting under orders of higher officers was rejected. Maxwell was tried and convicted of murder by the High Court of Justiciary of Scotland. This guard, under the direct orders of Ensign Maxwell, fired at the light, killing one of the prisoners. French prisoners in a Scottish jail had neglected to extinguish a light in their cell window when ordered to do so by a guard. One of the most famous precedents on the subject of a superior’s orders is the “Maxwell Case” dating from the Napoleonic Wars. To get to the bottom of this dilemma, let us examine American British, and German thinking on the subject, as reflected in tour decisions growing out of actual cases. Should he be protected by claiming obedience to a superior’s order? If he is strongly indoctrinated with perverted ideas of morality, he may even commit the crime willingly. On the other hand, the American Articles of War protect a soldier or officer who disobeys an obviously unlawful command.Įvery Nazi soldier or member of the Gestapo knows, when commanded to electrocute or gas civilians or prisoners of war, that he is perpetrating a foul deed.
I did not wish to do it, but I did it in obedience to the formal order of the Governor General of Brussels.” Accused of atrocities in a Belgian village, he replied, “Yes, I know it was contrary to the law of nations, for Lam a doctor of law. This situation is illustrated by a German officer of the last war. What is the average Nazi or Japanese soldier’s choice? He can defy a shocking command and be disciplined-perhaps shot on the spot-or obey it and later be charged by the United Nations with murder in violation of the customs and laws of war. Even if he knows that he is committing an atrocity, it seems hard to hold him responsible, since all his military training has stressed instant and unquestioning obedience. Ordered to commit an abominable deed, he may or may not know that under the laws of civilized warfare it is unlawful. Before that, the Rules failed to mention “superior orders,” and American courts martial upheld the principle that a soldier obeying-his commander’s orders is not protected if the order is unlawful.Īdmittedly, the ordinary soldier is in a tough spot. It should be noted that it did not enter the American Rules until 1914. The question is being raised whether the rule as to superior orders should not be changed. If this rule is continued it will not be easy to get at the guilty “commander.” Is he the lieutenant who orders a squad of soldiers to machine gun innocent hostages? Or the captain who issued the order to the lieutenant? Or the major? Or the colonel? Or the general from whom the original command came? One can climb higher and higher until only the chief of state-Hitler or Tojo-is reached, and he, according to many authorities, cannot be tried at all!
Notice that under this rule the ordinary soldier is excused but his commander or government is liable. 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.” You will find in paragraph 347 of the Rules of Land Warfare the following statement: “Individuals of the armed forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders.
#Act of war direct action sequels free
One of the most difficult problems to be faced in trying war criminals is that of determining the guilt of men who claim that they were acting under orders of their superior-that they did not commit offenses of their own free will.
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