Act on command

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Acting on orders can exclude subordinates in hierarchical structures from criminal liability when carrying out illegal orders, orders and laws. The unconditional duty of obedience (originally from the military sector) is in contradiction to the principle of legality if the superior orders the execution of crimes . In order to deal with this dilemma in national and international criminal law , three legal concepts have developed: the now outdated absolute impunity, the conditional criminal liability and the absolute criminal liability of the subordinate.

Concepts

Absolute reason for exclusion

Absolute impunity was justified by the fact that subordinate soldiers with little or no legal knowledge did not have to discuss, but obey and, if necessary, die. The criminal responsibility lies exclusively with the superior. The deficit shows in the intellectual intensification of the responsibility for z. B. the crimes of the Wehrmacht , which would have been with Hitler alone. The concept is out of date.

Conditional criminal liability

The conditional criminal liability sets in when the subordinate knows the illegality of the ordered action or should have known as a sensible person or the action is obviously illegal. This concept underlies most national criminal laws because it must also apply to smaller and more difficult to detect offenses such as theft, military offenses and minor violations of martial law. According to the Roman statute applicable to the International Criminal Court in The Hague , conditional responsibility also applies to war crimes in international criminal law .

Absolute criminal liability

The concept of absolute criminal responsibility was first applied in international criminal proceedings at the Nuremberg trial against the main war criminals based on Art. 8 of the IMT Statute and then in the following international ad hoc tribunals in accordance with the Nuremberg principles .

With Article 33 of the Rome Statute establishing the International Criminal Court in The Hague, it was restricted in 1998 to the offenses of genocide and crimes against humanity . Orders to commit genocide or crimes against humanity are obviously illegal according to Art. 33 Para. 2 and in any case lead to criminal liability of the perpetrator. The resulting impunity for other war crimes was so limited with the burden of proof placed on the defendant and more clearly defined war crimes that Gaeta only sees it as a formula compromise that should not lead to any softening. Article 33 reads:

  1. The fact that a crime under the jurisdiction of the Court was committed by order of a government or a military or civilian superior does not release the perpetrator from criminal liability unless a) the perpetrator was required by law to comply with the orders of the government concerned or of the superior concerned, b) the perpetrator was unaware that the order was unlawful, and c) the order was not manifestly unlawful.
  2. Orders to commit genocide or crimes against humanity are manifestly illegal for the purposes of this article.

Overlapping grounds for exclusion

An unlawful order can also be obeyed under direct pressure ( emergency order ) or because of an erroneous legal opinion . These two facts are independent grounds for exclusion from punishment and partially overlap with the legal concept of acting on command.

Legal history

Hagenbach in court
Bern Chronicle of Diebold Schilling the Elder

In 1474, Peter von Hagenbach was accused of having allowed rape, mistreatment and murder under his jurisdiction as bailiff on the Upper Rhine. He defended himself with the argument that he had acted on the orders of the Duke of Burgundy, Charles the Bold . Even so, he was found guilty and beheaded. The process fell into oblivion and did not establish a precedent function.

1865 Captain was Henry Wirz , former commander of the notorious POW camp camp Andersonville of the Confederate States of America sentenced in Georgia, in federal court in Washington for ill-treatment of thousands of prisoners and killing of prisoners to death. The objection to acting on the orders of his superiors was rejected by the court as the order was clearly unlawful.

In 1916 the captain of the merchant ship SS Brussels Charles Fryatt was sentenced to death by a German court martial as a franc shooter for attempting to ram the German submarine SM U 33 with his ship in 1915 in accordance with the orders of the British Admiralty . The court disregarded the order situation and Garner calls the controversial case a "clear act of legal murder" for several reasons.

In 1921, the former submarine captain Karl Neumann was charged as part of the Leipzig trials of having sunk the British hospital ship Dover Castle in the Mediterranean on May 26, 1917 . He was acquitted because, on the instructions of the German admiralty, the hospital ships in the Mediterranean had been declared warships because of alleged abuse by the Allies and he could assume the legality of the order and its execution. On the other hand, in the case of the sinking of the Canadian hospital ship Llandovery Castle on June 27, 1918 in the Atlantic by SM U 86 under Captain Helmut Brümmer-Patzig, Ludwig Dithmar and Johann Boldt were convicted because they were involved in the bombardment of lifeboats and their illegality had to be aware of the command and its execution. The command situation was assessed as mitigating the penalty for them.

During the Second World War, the German military judiciary continued to apply conditional criminal liability as in the Llandovery case (according to Section 47 (2) of the MStGB) for Allied defendants, while it did not check orders for their legality in trials against German defendants.

Nuremberg Trial, September 30, 1946

In the statute of the International Military Tribunal, an appendix to the London statute of August 8, 1945, Article 8 regulates the absolute criminal liability for actions on orders for the Nuremberg trial of the main war criminals and in Control Council Act No. 10 for the Nuremberg successor trials, since it is serious of the offenses to be negotiated, the illegality of the acts would be obvious. A mitigation of the order situation was allowed. A similar regulation applied according to Article 6 of the proclamation for the International Military Tribunal for the Far East of January 19, 1946.

In 1950, absolute criminal liability was codified by the United Nations International Law Commission as Principle IV of the Nuremberg Principles and applied in the international ad hoc tribunals ( International Criminal Court for Rwanda and International Criminal Court for the Former Yugoslavia ).

Section 5 of the German Military Criminal Law of 1957 follows the concept of conditional criminal responsibility and, under certain conditions, recognizes an excuse order emergency .

The Federal Court found in 1995 in the second  wall protecting process the order to shoot according to § 27 DDR GrenzG as manifestly illegal and said no law enforcement protection of § 258 of the Criminal Code GDR.

In 1998, when the Rome Statute of the International Criminal Court was negotiated, at the insistence of the USA, conditional criminal responsibility was combined with absolute responsibility in a compromise formula in Article 33.

See also

literature

Individual evidence

  1. Paola Gaeta: The Defense of Superior Orders: The Statute of the International Criminal Court versus Customary International Law , p. 183.
  2. ^ Paola Gaeta: The Defense of Superior Orders: The Statute of the International Criminal Court versus Customary International Law , p. 189.
  3. ^ Statute for the International Military Court of August 8, 1945 University of Marburg, accessed on May 18, 2017.
  4. Paola Gaeta: The Defense of Superior Orders: The Statute of the International Criminal Court versus Customary International Law , pp. 188 ff.
  5. Rome Statute of the International Criminal Court , United Nations, July 17, 1998, accessed September 22, 2016.
  6. ^ Max Markham: The Evolution of Command Responsibility in International Humanitarian Law , p. 51.
  7. ^ Gregory S. Gordon: The Trial of Peter von Hagenbach, published in: The Hidden Histories of War Crimes Trials , Oxford UP 2013, eds. Heller and Simpson, ISBN 978-0-19-967114-4 , pp. 13-49 .
  8. Yoram Dinstein: The Defense of Obedience to Superior Orders in International Law , S. 160th
  9. : Yoram Dinstein The Defense of Obedience ot Superior Orders in International Law f, p 160th
  10. Yoram Dinstein: The Defense of Obedience to Superior Orders in International Law , p. 12 ff.
  11. : Yoram Dinstein The Defense of Obedience to Superior Orders in International Law ff, p. 14
  12. Andreas Toppe: Military and international war law , Oldenbourg, 2008, ISBN 978-3-486-58206-2 , p. 390 ff.
  13. Yoram Dinstein: The Defense of Obedience to Superior Orders in International Law, p. 116 ff.
  14. Yoram Dinstein: The Defense of Obedience to Superior Orders in International Law, S. 156th
  15. Alen Folnovic: Aspects of the development of the legal figure of acting on command in German and international law, p. 84.
  16. Paola Gaeta: The Defense of Superior Orders: The Statute of the International Criminal Court versus Customary International Law, pp. 188 ff.