Superior Orders and Duress as Defenses in International Law and the International Criminal Tribunal for the Former Yugoslavia

Superior Orders and Duress as Defenses in International Law
and the International Criminal Tribunal for the Former Yugoslavia

While some defenses are relatively new, others have existed for several centuries. “Superior orders” is probably the oldest defense used in military trials. Dating back to the 15th century, Peter von Hagenbach was tried and convicted for mistreating, and permitting those under his command to mistreat, the people of Breisach (Levie, 1991, p.187). His defense was that he was adhering to the orders of his superior, the Duke of Burgundy. Henry Wirz, a captain for the Confederate Army in the American Civil War, made a similar defense against allegations of his mistreatment of prisoners of war (Levie, 186). Wirz stated:

Lassa Oppenheim, a well-known authority on international law in the first half of the 20th century, produced nine editions of his comprehensive works. His views, however, changed considerably over time. In his first edition, published in 1906, Oppenheim wrote that “If members of the armed forces commit violations by order of their Government, they are no war criminals and cannot be punished by the enemy….” (Levie, 1991, p. 186) However, by the sixth edition written in 1935, Oppenheim writes:

It is certainly probable that Oppenheim and his editors revised his views after witnessing World War I and the trials following it.

The Dover Castle case following World War I provided one of the first cases involving the defense of superior orders in the period of modern warfare (Scaliotti. 2001, p. 133). The Dover Castle was a hospital ship carrying the sick and wounded from Malta to Gibraltar. In spite of the fact that this was known as a peaceful ship, it was torpedoed, resulting in the death of everyone on board. The National German court found the sailor who actually launched the torpedo not guilty because, according to German law, subordinates were required to follow all orders from their superiors (Scaliotti, 2001, p. 133). The Llandovery Castle case involved a similar situation where, subsequent to the boat sinking, most of the survivors in the water were shot by the accused. In this case as well, the accused were found not guilty because they acted pursuant to a superior’s orders (Scaliotti, 2001, p. 133).

The International Military Tribunals in both Nuremberg and the Far East following World War II created the largest discussion of command responsibility and superior orders ever assembled in one place at that time. While most of these trials involved liability stemming from a command position, the development of this body of law directly relates to the defense of superior orders in that it established the guidelines and a rubric for understanding superior/subordinate relationships. And, most importantly, these decisions set a standard that liability can exist on both sides of that relationship. Several notable cases merit attention and discussion.

The most well-known case from the World War II Tribunals regarding command responsibility was the trial of General Tomoyuki Yamashita at the International Military Tribunal for the Far East (IMTFE). After assuming command of the Philippines in October 1944, he was charged, convicted, and sentenced to death for the murders and rapes committed by troops under his command (Lippman, 2000, p. 142). The tribunal determined that because the crimes were so widespread and systematic, Yamashita either knew and ordered these acts to occur or that he at least condoned them (Lippman, 2000, p. 142). In an oft-quoted statement, the Tribunal declared:

This decision was not universally supported. Justice Frank Murphy dissented, arguing that there was no precedent for such a decision in international law and that the court had erroneously ignored the principle of individual responsibility, the very foundation of all justice systems (Lippman, 2000, p. 143). This view was passed over in favor of placing an affirmative duty on commanders to be responsible for and informed of their subordinates’ actions.

Another significant case was the High Command case before the Nuremberg Tribunal. This case limited command liability to those situations where the commander had either actual or constructive knowledge of wrongdoing by his/her subordinates. In this case, the Court stated that a commander had the right to assume his subordinates were acting lawfully and that criminality is not ascribed based upon a position in the chain of command (Lippman, 2000, p. 149).

Another important and famous case for the development of the superior orders defense was the trial of Adolf Eichmann in 1961. This case codified the “manifest illegality” principle, which states that a subordinate should disobey all orders that are clearly illegal (Scaliotti, 2001, p. 131). Another particularly relevant case arising from crimes committed during World War II was the trial of Klaus Barbie. In this case, the French Court of Cassation stated that the defense of superior orders is not an excuse, and may not qualify as a mitigating factor for punishment (Scaliotti, 2001, p. 132).

Essentially, these standards of responsibility allowed defendants to make certain defenses against accusations. A superior could argue that he/she did not know, nor could he/she have known, that these acts were taking place. Similarly, as long as the crimes committed were not so widespread and notorious that they could not be ignored, a commander could be found innocent for his inaction. However, there was still considerable debate as to whether superior orders constituted a defense to charges of war crimes. Drawing from some of the conclusions of the World War II cases, subordinates had an obligation to disobey orders that were manifestly illegal and that following orders may not result in a decrease in punishment.