Superior orders
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Superior Orders is, in essence, the plea that a soldier not be held guilty for crimes committed during the course of war due to the orders of a superior officer.[1]. The superior orders defense is similar to the doctrine of respondeat superior in tort law where a superior is held liable for the actions of a subordinate, and the subordinate may escape liability. [2]Legal scholars and war crimes tribunals define the superior orders plea as the complement to Command responsibility and may correlate or distinguish the plea from the doctrine of respondeat superior.[3]
One of the most noted uses of this defense was by the accused in the Nuremberg Trials, such that it is also called the Nuremberg Defense. However, it has been used both before and after the Nuremberg Trials. It was during these trials, under the London Charter of the International Military Tribunal which set them up, that the defense was no longer considered enough to escape punishment; merely enough to lessen punishment.[4]
It has since been used in the trial of Adolf Eichmann in Israel, as well as the trial of Alfredo Astiz of Argentina, responsible for a large number of disappearances and kidnappings that took place during that nation's transfer to democracy.
Pre-Nuremberg
The first recorded use of the test was the trial of Peter von Hagenbach in 1484, where he stated that the various atrocities that he had allegedly committed were not his responsibility, for he was being ordered by his superior, the Holy Roman Emperor of the time, Charles the Bold.[5] However, in that matter, Peter von Hagenbach was executed by the tribunal created out of the various victims of his crimes.
The next recorded usage of the doctrine was the German Military Trials that took place after World War I. One of the most famous of these trials was the matter of Lieutenant Karl Neumann, who was a U-Boat Captain responsible for the sinking of the Hospital ship, the Dover Castle.[6] Even though he frankly admitted to having sunk the ship, he stated that he had done so on the basis of orders supplied to him by the German Admiralty; and as such, he could not be held liable for his actions. The Leipsic Supreme Court acquitted him, accepting the defense of superior orders as a grounds to escape criminal liability.[7] Further, that very Court had this to say in the matter of Superior Orders:
“… that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors.[8]
Many accused of war crimes were acquitted on a similar defense, creating immense dissatisfaction amongst the Allies; this has been thought to be one of the main causes for the specific removal of this defense in the London Charter of the International Military Tribunal, which has been attributed to the actions of Robert H. Jackson, a Justice of the United States Supreme Court, who was appointed Chief Prosecutor at the Nuremberg Trials.
The Trials at Nuremberg
At the conclusion of World war II, there was little consensus amongst the Allies as to what was to be done with the Nazi war prisoners. Winston Churchill was inclined to have them 'executed as outlaws'.[9]. The Soviets desired trials, but wished there to be a presumption of guilt, as opposed to the common presumption of innocence that accompanies most criminal trials.[10]
Canada and Nuremberg Principle IV
Nuremberg Principle IV, and its reference to an individual’s responsibility, was at issue in Canada in the case of Hinzman v. Canada. Jeremy Hinzman was a U.S. Army deserter who claimed refugee status in Canada as a conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, Jeffry House had previously raised the issue of the legality of the Iraq War as having a bearing on their case. The Federal Court ruling was released on March 31, 2006, and denied the refugee status claim.[11][12] In the decision, Justice Anne L. Mactavish addressed the issue of personal responsibility:
“An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.”[13]
On Nov 15, 2007, the Supreme Court of Canada refused to hear the case on appeal, without giving reasons.[15]
References
- ^ See L.C. Green, Superior Orders in National and International Law, (A.W. Sijthoff International Publishing Co., Netherlands, 1976)
- ^ See Harvard Law Review Editorial Board, The Doctrine of Respondeat Superior, Harvard Law Review, Vol. 17, No. 1. pp. 51-2, 17 Harv. L. Rev. 51 (Nov., 1903).
- ^ See James B. Insco, Defense of Superior Orders Before Military Commissions, Duke Journal of Comparative and International Law, 13 DUKEJCIL 389 (Spring, 2003). Asserting in the author's view that a respondeat superior approach to superior orders is an "underinclusive extreme."
- ^ H.T. King, Jr., The Legacy of Nuremberg, Case Western Journal of International Law, Vol. 34. (Fall 2002) at pg. 335.e
- ^ See K.C. Moghalu, Global Justice: The Politics of War Crime Trials, (Greenwood Publishers, 2006), sourced from Google Books.
- ^ See http://query.nytimes.com/gst/abstract.html?res=9C04EEDA1739E133A25756C0A9609C946095D6CF accessed January 2008
- ^ Anon., “German War Trials: Judgement in Case of Commander Karl Neumann”, The American Journal of International Law, Vol. 16, No. 4. (Oct., 1922) at pg. 704-708.
- ^ G.A. Finch, Superior Orders and War Crimes, The American Journal of International Law, Vol. 15, No. 3. (Jul., 1921) at pg. 440-445.
- ^ Churchill: execute Hitler without trial - Times Online
- ^ K.C. Moghalu, Global Justice: The Politics of War Crime Trials, (Greenwood Publishers, 2006), sourced from Google Books.
- ^ Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto’s Now Magazine. Retrieved 2008-06-02.
- ^ "Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420". Office of the Commisioner for Federal Judicial Affairs. pp. (see Held, Para. (1)). Retrieved 2008-06-16.
- ^ Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto’s Now Magazine. Retrieved 2008-06-02.
- ^ Hinzman v. Canada Federal Court decision. Paras (157) and (158). Accessed 2008-06-18
- ^ CBC News (2007-11-15). "Top court refuses to hear cases of U.S. deserters". CBC News. Retrieved 2008-06-02.