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.

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 [violations of the customs and laws of war] in case they are committed under the orders or sanction of their government or commanders. 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.”

Notice that under this rule the ordinary soldier is excused but his commander or government is liable. 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!

The question is being raised whether the rule as to superior orders should not be changed. It should be noted that it did not enter the American Rules until 1914. 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.

Admittedly, the ordinary soldier is in a tough spot. Ordered to commit an abominable deed, he may or may not know that under the laws of civilized warfare it is unlawful. 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.

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.

This situation is illustrated by a German officer of the last war. 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. I did not wish to do it, but I did it in obedience to the formal order of the Governor General of Brussels.”

On the other hand, the American Articles of War protect a soldier or officer who disobeys an obviously unlawful command.

Every 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. If he is strongly indoctrinated with perverted ideas of morality, he may even commit the crime willingly. Should he be protected by claiming obedience to a superior’s order?

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.

An Early Precedent

One of the most famous precedents on the subject of a superior’s orders is the “Maxwell Case” dating from the Napoleonic Wars. French prisoners in a Scottish jail had neglected to extinguish a light in their cell window when ordered to do so by a guard. This guard, under the direct orders of Ensign Maxwell, fired at the light, killing one of the prisoners. Maxwell was tried and convicted of murder by the High Court of Justiciary of Scotland. His plea that he was acting under orders of higher officers was rejected. The court declared that “every officer has a discretion to disobey order against the known laws of the land.”

The American View

A famous American case is that of Mitchell v. Harmony, a civil suit growing out of the Mexican War. An American Army officer in Mexico illegally seized the goods of a trader in occupied territory. When later sued for the price of the goods, he claimed to have acted under orders of a superior officer. The court refused to consider this plea. 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. The order may palliate, but it cannot justify” the deed.

In another well-known American case, The United States v. 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. They were held guilty of the act. With reference to the defense of Jones and the others that they had only obeyed their captain’s orders, the justice said: “This doctrine, ... alarming and unfounded, is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act. Can it be for a moment pretended, that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not.”

In some later American decisions, however, there is a tendency to stress the military point of view. The absolute rule which holds the soldier responsible if the order turns out in fact to have been unlawful is qualified in these decisions. They tend to grant immunity if the soldier obeyed an order which was not “palpably” illegal. Whatever may be the practice in military tribunals, it cannot be said that the true American judicial rule has as yet been definitely settled.

The English View

Under English law a soldier has a somewhat more favorable position than under most American decisions.

A leading case in English legal history is that of Regina v. Smith. During the Boer War a patrol of British soldiers, sent out on a dangerous mission, had an argument with a native who hesitated to find a bridle for them. Smith, one of the soldiers, under orders of his superiors, killed the native on the spot. After the war, a special court tried Smith for murder and acquitted him. The court said, “I think it is a safe rule to lay down that if a soldier believes he is doing his duty in obeying commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known they were unlawful, the private soldier would be protected by the orders of his superior officer.”

The German View

In the Llandovery Castle case the submarine officers Dithmar and Boldt claimed that they were carrying out their superior’s command to sink the lifeboats. The German Supreme Court turned a deaf ear to their plea and declared, “Military subordinates are under no obligation to question the order of their superior officers, and they can count upon its legality. But no such confidence can be held to exist if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. ... They should, therefore, have refused to obey. As they did not do so, they must be punished.”

A Suggested Rule

What seems to be needed, according to some students of the problem, is a rule that will serve as a check upon extreme brutality and at the same time take account of the soldier’s peculiar position “between the devil and the deep blue sea.”

The following rule has been suggested for adoption by an international criminal court as most nearly meeting these requirements (assuming, of course, that it is supplemented by a sound sentencing policy): The act of a soldier in obedience to a military order of his superior is not justifiable if, when he committed it, he either actually knew or, under the circumstances, had reasonable grounds for knowing that the act ordered is illegal either under the laws and customs of warfare or under the criminal law of his country; and when the two systems clash, the former shall prevail.

The final proviso is included because otherwise the most lawless nations could easily whitewash their soldiers for the most flagrant violations of the law of nations by simply declaring their acts, if done against the enemy, to be always lawful under their own law. Normally, the law to be applied in order to determine the illegality of the order that resulted in atrocities would have to be the law of the accused man’s country. He could not be expected to know the law of the enemy nation that prosecutes him. However, the laws and customs of war, as well as the ordinary principles of criminal law, are generally known and applicable in Germany, Japan, and other Axis countries. Incidentally, a non-German court can legitimately ignore some of the Nazi legislation—such as that which denies legal status to Jews and other “non-Aryans”—because it is so contrary to the elementary principles of justice and fair play. While a sovereign nation is free to adopt any legislation it sees fit, the family of civilized nations is not bound to recognize the erratic Nazi laws.

A rule such as that described above can avoid harsh results if the sentencing procedure after conviction makes allowances for the rank of the accused and if his punishment is lessened in certain circumstances, such as the following: he was not entirely a free agent; there was no way for him to know definitely that he was violating the laws and customs of legitimate warfare; the illegal order was obeyed under stress, at a period of great danger, during hostilities, or the like; the command required instant obedience in carrying out an act that could not be postponed.

If these considerations were applied, many ordinary soldiers would get off with nominal or slight punishment, while officers who had more knowledge of the law and greater freedom of action would be punished more severely. The defense of superior orders and supplementary leniency should, however, perhaps not apply to the various private Nazi militias, such as the Elite Guards and Storm Troopers. Even if it should turn out that they had been made part of the German army by law or decree, they clearly do not deserve the usual protection accorded to soldiers. They originated as private volunteer corps, and at least in a general way their members knew when they enlisted of the crimes that were expected of them.

From EM 11: What Shall Be Done with the War Criminals? (1944)