Order emergency

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Command emergency is a term from criminal law dogmatics.

General legal regulations can be found in § 34 StGB ( justifying emergency ) and § 35 StGB ( excusing emergency ). Both regulations presuppose that a recipient of an order is threatened with a current danger to life or limb in the event that he does not carry out a (criminal) order. When the command is executed, the recipient of the command remains unpunished due to this predicament.

Germany

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Use in trials of crimes in the First World War
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War crimes in World War II

The command emergency played a major role, especially in Nazi trials for war crimes during National Socialism , as many of the defendants invoked it to deny their individual guilt.

The IMT statute applied by the International Military Tribunal does not recognize in Art. 8 the fact that a defendant acted on the orders of his government or a superior as a reason for exclusion. The action on the orders could only be considered in mitigation of punishment if it appeared justified in the opinion of the Court.

The Federal Court of Justice based its case law on the general provisions in Sections 34, 35 of the Criminal Code (Sections 52, 53 of the Criminal Code, old version), as there were no special provisions in military criminal law.

According to this, an order emergency could only be given if the action was "compelled from the recipient of the order by the threat of present danger to life and limb, that is, his will is bent by this threat" or "if the act was committed" to save " means when the idea of ​​danger has induced the perpetrator to act illegally ”.

Neither the danger of demotion nor the transfer to a probation unit justified the necessary danger to life or limb. The present danger is to be understood as “a condition which, according to human experience, with natural further development of the given situation, makes the occurrence of damage certain or at least highly probable if a preventive measure is not taken immediately.” The assumption of an “imperative to order” therefore requires concrete findings about the way in which “human experience with natural further development of the given situation” would have caused damage to life or limb “certainly or at least most likely.” The mere possibility of damage to life or limb does not correspond to the concept of danger and is sufficient for The recipient of the order must also have "tried to the best of his ability" to avoid the danger in other ways than by carrying out the order.

Section 47 of the Military Criminal Code in force at the time of the offense stated:

“(1) If a criminal law is violated by the execution of an order in official matters, the superior who issued the order is solely responsible. However, the participant's punishment is meted out to the submissive subordinates:
1. if he has exceeded the order given to him, or
2. if he knew that the command of the superior concerned an act which was intended to be a civil or military crime. "

No case is documented in historical research according to which a subordinate was convicted of failing to execute an obviously criminal order under Section 47 (1) No. 2 of the Military Criminal Code. There was no threat to life and limb from the SS and police courts if, for example, a member of the Einsatzgruppen of the Security Police and SD had refused to give an order.

It speaks against the acceptance of an order emergency if the recipient of an order carried out a (criminal) order with willingness, devotion, determination, without inhibition or "without deliberation in great haste", even more if he did much more than he did from him without any coercion was expected, especially when he displayed brutality, when he abused the victims or when he committed excesses beyond the actions ordered, but also when he (as a superior) personally participated in the killings or when he later boasted of his cooperation . With such an active role during the Holocaust, for example, the Jerusalem District Court denied Adolf Eichmann the appeal to a punitive mitigation emergency.

GDR wall protectors

In the process the DDR - border guard of killing (§§ 112, 113 StGB-DDR) republic volatile citizens was made an emergency command asserted by the defendants against the charge. The injuries and killing of refugees from the republic by soldiers of the border troops had been ordered by the shooting order . The order to shoot itself was justified by §§ 26, 27 GrenzG-DDR (use of firearms to prevent impending crimes).

In these cases, the Federal Court of Justice and the Federal Constitutional Court denied an order exempt from punishment for various reasons. In particular, the Federal Court of Justice considered the alleged justifications of the Border Act based on Radbruch's formula to be irrelevant.

criticism

The Federal Constitutional Court affirmed the condemnation of the wall riflemen as well as the judgments against Nazi war criminals using Radbruch's formula and general human rights and fundamental freedoms. A retroactive interpretation of the rule of law, in particular § 27 GrenzG-GDR, and its failure to be considered as a serious system injustice is permissible. As in the Nazi cases, the appeal to a supposed reason for justification or a lack of orders was ruled out. It was sometimes criticized as victorious justice and inappropriately to equate the killing of an unarmed refugee by sustained fire at the inner-German border with the Nazi crimes in World War II as equally obvious and unbearable violations of elementary rules of justice.

The European Court of Human Rights , taking into account the outstanding importance of the right to life in all international documents for the protection of human rights, including the ECHR itself, in which the right to life is guaranteed in Art. 2, the strict interpretation of the GDR Legal norms by the Federal German courts and thus the condemnation of members of the Politburo of the Central Committee of the SED and the NVR as well as of GDR border soldiers for being compatible with the prohibition of retroactive effect from Article 7, Paragraph 1 of the ECHR .

Bundeswehr soldiers

According to § 5 WStrG , acting on orders of soldiers of the Bundeswehr does not lead to a reason for justification , but to an excuse , to mitigate punishment or to waive punishment if the subordinate recognizes the illegality of the order but decides to execute the order due to an emergency Command resolves. If he does not know the illegality, the general rules of error apply.

The central obligation of every Bundeswehr soldier to carry out given orders "conscientiously", based on § 11 Paragraph 1 S. 1 and 2 SG , does not require unconditional, but rather thoughtful and especially the consequences of executing orders - especially with regard to the limits of applicable law and the ethical "border marks" of one's own conscience - considerative obedience. Parts of the Bundeswehr considered the order to target hijacked passenger planes to be shot down, as provided for in the original version of the Aviation Security Act, as illegal and therefore recommended, if necessary, in accordance with § 11 SG to refuse to obey .

Austria

The War Crimes Act (KVG), which was applied by the people's courts until 1957, did not excuse war crimes committed on orders during the Second World War (Section 1 (3) KVG). The existence of an imperative to order was only affirmed by the Supreme Court under similarly strict conditions as by the German Federal Court of Justice, namely "if the perpetrator was exposed to a present, urgent risk to life or limb that could not be avoided in any other way than by committing the crime" .

In the armed forces , orders that violate human dignity or the observance of which would violate criminal law regulations may not be issued and are not to be obeyed (§§ 6, 7 ADV). This means that the irresistible compulsion to carry out an illegal order, which is typical of an order emergency, cannot occur.

Argentina

With the 1987 "Emergency Orders Act" (Ley de Obediencia Debida) , President Raúl Alfonsín wanted to limit the prosecution of members of the military junta for the crimes against humanity committed during the military dictatorship in Argentina between 1976 and 1983 . Only after parliament annulled the law and the Supreme Court confirmed its unconstitutionality in June 2005 did criminal proceedings expand again.

International humanitarian law

The application of the emergency command is becoming more and more of a secondary importance in the case law. In cases of obvious violations of the European Convention on Human Rights , a recipient of orders in Europe can no longer invoke impunity. A possible conflict of conscience of the actors has been taken into account in the sentence, in the wall rifle trials the defendants were mostly - unlike in the 1960s - sentenced to suspended sentences.

According to Art. 2 Para. 3 of the UN Convention against Torture, an instruction on the use of torture issued by a superior or a public authority may not give rise to an imperative to order.

See also

literature

  • Henning Radtke : Command emergency, action on command and supra-legal emergency in the case law of the Supreme Court for the British Zone (OGH-BZ) and their significance for current international criminal law , in: Crimes against humanity - The Supreme Court of the British Zone, North Rhine-Westphalia - Justice Volume 19, 2012

Web links

Wiktionary: Command emergency  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Nazi crimes, totalitarian rule and individual responsibility: The problem of the so-called command emergency pdf, messages from the Federal Archives , Ludwigsburg branch , special issue 2008, accessed on May 18, 2017.
  2. ^ Statute for the International Military Court of August 8, 1945 University of Marburg, accessed on May 18, 2017.
  3. ↑ BGH 1 StR 791/51 of October 14, 1952 and BGH StR 760/52 of May 28, 1953
  4. ↑ BGH in Coll. D 26
  5. ↑ BGH in Coll. D 19, 36
  6. ↑ Military Criminal Code for the German Reich of June 20, 1872. verfassungen.de, accessed on May 18, 2017
  7. ^ Military Criminal Code, Section 47Military Criminal Code and Special War Criminal Law Ordinance. Explained by Erich Schwinge. 6th edition, Berlin: Junker and Dünnhaupt Verlag, 1944, p. 100
  8. ^ Kurt Hinrichsen: Command emergency , in: Adalbert Rückerl (ed.), NS processes. After 25 years of law enforcement. Possibilities - Limits - Results. 2nd supplemented edition, Karlsruhe 1972, pp. 131–161.
  9. ↑ Jan Bruners: Prosecution of Nazi Crimes University of Cologne, 1998, p. 28 f.
  10. ^ Sven Felix Kellerhoff: SS-Einsatzgruppen: Why young men murder in chord Die Welt , January 14, 2014
  11. ^ Cornelia Rabitz: Hitler's Wehrmacht - apolitical, but willing Deutsche Welle , October 25, 2012
  12. ↑ Nazi crimes, totalitarian rule and individual responsibility: The problem of the so-called command emergency pdf, messages from the Federal Archives , Ludwigsburg branch , special issue 2008, accessed May 18, 2017
  13. ↑ Martin Krauss: The public murderer Jüdische Allgemeine , August 11, 2011
  14. ^ Law on the State Border of the GDR "Border Act" of March 25, 1982, GDR Law Gazette , March 29, 1982
  15. ↑ BGH, judgment of November 3, 1992 gWuH - 5 StR 370/92 = BGHSt 39, 1
  16. ↑ BVerfG, decision of October 24, 1996 - 2 BvR 1851, 1853, 1875 and 1852/94 = BVerfGE 95, 96
  17. ↑ BGH, judgment of March 20, 1995 gS- 5 StR 111/94 para. 11 = BGHSt 41, 101
  18. ↑ BVerfGE 95, 96
  19. ↑ Jens Ph. Wilhelm: Coming to terms with the past through law DSA 2000, p. 12 ff., 14
  20. ↑ Elisabeth Holzleithner : Introduction to Legal Philosophy and Legal Ethics University of Vienna, 2014, pp. 11 ff., 15
  21. ↑ ECJMR, judgment of March 22, 2001 - complaints No. 34044/96, 35532/97 u. 44801/98 New Justice 2001, 261
  22. ^ Command emergency Rechtslexikon.net, accessed on May 18, 2017
  23. ↑ BVerwG, judgment of June 21, 2005 - 2 WD 12.04
  24. ↑ Aircraft shot down: jet pilots mutiny against Jung Spiegel , September 17, 2007
  25. ↑ Constitutional Law of June 26, 1945 on War Crimes and Other National Socialist Atrocities (War Criminal Law) State Law Gazette for the Republic of Austria of June 28, 1945 No. 32
  26. ↑ David Rennert: Not a big undertaking? The inadequate judicial processing and the factual end of the prosecution of NS crimes by Austrian jury courts using the example of the Viennese gas truck driver Josef Wendl University of Vienna, 2013, p. 61 f.
  27. ↑ Michael Pesendorfer, Christian Wagnsonner, Christian Langer: Prisoners of war have rights - always! Troop service, episode 279, issue 5/2004
  28. ^ Ordinance of the Federal Government of January 9, 1979 on the General Service Regulations for the Armed Forces (ADV) RIS , accessed on May 21, 2017
  29. ↑ Ruth Fuchs, Detlef Nolte: Politics of the Past in Chile, Argentina and Uruguay bpb , October 9, 2006
  30. ↑ Sven Felix Kellerhoff: The first wall rifle trial took place in 1963 Die Welt , October 11, 2013
  31. ↑ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10, 1984 (BGBl. 1990 II p. 246)
  32. ↑ Obama's fatal signal: "There is no need to order when tortured" FR , April 17, 2009