[lit-ideas] Thank you for Smoking (Was: Superior Orders)

  • From: Jlsperanza@xxxxxxx
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Mon, 24 May 2010 18:19:26 EDT

My last post today.

In a message dated 5/24/2010 6:45:47 P.M.,  rpaul@xxxxxxxx writes:

The phrase 'I was only following orders,' became  Eichmann's refrain in 
Jerusalem, and nearly the only defense of his actions he  offered. In fact, I'd 
say it was he who contributed it to the lexicon of  cynicism.


I think if you write "Speranza Eichmann" in google  you get Helm's hit!

--- So blame HIM!

But then there's  

'due obedience'. What does it stand for:

"I was only doing my  job".
Some fragments from the wiki entry on 'superior orders', below.
J. L. Speranza, Bordighera, etc.

"Superior Orders (often known as the Nuremberg Defense or Lawful  Orders) 
is a plea in a court of law that a soldier not be held guilty for  actions 
which were ordered by a superior office.[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 
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  
1945-46 Nuremberg Trials, such that it is also called the "Nuremberg Defense."  
The Nuremberg Trials were a series of military tribunals, held by the main  
victorious Allied forces of World War II, most notable for the prosecution 
of  prominent members of the political, military, and economic leadership of 
the  defeated Nazi Germany. It was during these trials, under the London 
Charter of  the International Military Tribunal which set them up, that the 
defense of  "Superior Orders" was no longer considered enough to escape 
punishment; but  merely enough to lessen punishment.[4]"

"However, the defense of "Superior Orders" has been used both before  and 
after the Nuremberg Trials."

"The trial of Peter von Hagenbach
See also: Command  responsibility
Hagenbach on trial, from Berner Chronik des Diebold  Schilling dem Älteren
In 1474, in the trial of Peter von Hagenbach by an ad  hoc tribunal of the 
Holy Roman Empire, there was the first known “international”  recognition 
of commanders’ obligations to act lawfully.[5][6] Hagenbach offered  the 
defense that he was just following orders, but this defense was rejected and  
was convicted of war crimes and beheaded.[7]
Specifically, Hagenbach was  put on trial for atrocities committed under 
his command but not by him directly,  during the occupation of Breisach. This 
was the earliest modern European example  of the doctrine of command 
responsibility.[7][8] Since he was convicted for  crimes "he as a knight was 
to have a duty to prevent," Hagenbach defended  himself by arguing that he 
was only following orders[5][9] from the Duke of  Burgundy, Charles the 
Bold, to whom the Holy Roman Empire had given  Breisach.[10] This defense was 
"On June 4, 1921, the legal doctrine of "Superior Orders" was used during  
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.[11] 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 (Germany's Supreme Court) acquitted him, accepting 
the defense of  superior orders as a grounds to escape criminal 
liability.[12] Further, that  very Court had this to say in the matter of 
“… that all  civilized nations recognize the principle that a subordinate 
is covered by the  orders of his superiors.[13]
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."
"In 1945 and 1946, during the Nuremberg Trials the issue of Superior Orders 
 again arose: These trials gained so much attention that the "Superior 
Orders  defense" has subsequently become interchangeable with the label, 
"Nuremberg  Defense." This is a legal defense that essentially states that the 
defendant was  "only following orders" ("Befehl ist Befehl", literally "order 
order") and is  therefore not responsible for his or her crimes."

"Before the end of World War II, the Allies suspected such a defense  might 
be employed, and issued the London Charter of the International Military  
Tribunal (IMT), which specifically stated that following an unlawful order is 
 not a valid defense against charges of war crimes.
Thus, under Nuremberg  Principle IV, "defense of superior orders" is not a 
defense for war crimes,  although it might influence a sentencing authority 
to lessen the penalty.  Nuremberg Principle IV states:
"The fact that a person acted pursuant to  order of his Government or of a 
superior does not relieve him from  responsibility under international law, 
provided a moral choice was in fact  possible to him."
During the Nuremberg trials, Wilhelm Keitel, Alfred Jodl  and other 
defendants unsuccessfully used the defense.
(Before the trials,  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 the leaders 'executed  as outlaws'.[14] The Soviets desired 
trials, but wished there to be a  presumption of guilt, as opposed to the 
procedural presumption of innocence that  accompanies most western criminal 

"The defense of "Superior Orders" again arose in the 1961 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 
 during that nation's transfer to democracy.
Following the My Lai Massacre in  1968, the defense was employed during the 
court martial of William Calley. Some  have argued that the outcome of the 
My Lai Massacre courts martial was a  reversal of the laws of war that were 
set forth in the Nuremberg and Tokyo War  Crimes Tribunals.[16] Secretary of 
the Army Howard Callaway was quoted in the  New York Times as stating that 
Calley's sentence was reduced because Calley  honestly believed that what he 
did was a part of his orders — a rationale that  stands in direct 
contradiction of the standards set at Nuremberg and Tokyo,  where German and 
soldiers were executed for similar acts.
In 1996,  the "Superior Orders" defense was successfully used by Erich 
Priebke, although  the verdict was appealed and he was later convicted[citation 
needed]. It was  used with varying degrees of success by those involved in 
the Hostages  Trial[citation needed]."

"The 1998 Rome Statute of the International Criminal Court
It could  be argued that a version of the Superior Orders defense can be 
found as a  defense to international crimes in the Rome Statute of the 
International  Criminal Court. (The Rome Statute was agreed upon in 1998 as the 
foundational  document of the International Criminal Court, established to try 
those  individuals accused of serious international crimes.) Article 33, 
titled  "Superior Orders and prescription of law,"[17] states:"

1. The fact that a crime within the jurisdiction of the Court has been  
committed by a person pursuant to an order of a Government or of a superior,  
whether military or civilian, shall not relieve that person of criminal  
responsibility unless:

(a) The person was under a legal obligation to obey orders of the  
Government or the superior in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes  
against humanity are manifestly unlawful.

There are two interpretations of this Article:

This formulation, especially (1)(a), whilst effectively prohibiting the use 
 of the Nuremberg Defense in relation to charges of genocide and crimes 
against  humanity, does however, appear to allow the Nuremberg Defense to be 
used as a  protection against charges of war crimes, provided the relevant 
criteria are  met.
Nevertheless, this interpretation of ICC Article 33 is open to debate:  For 
example Article 33 (1)(c) protects the defendant only if "the order was not 
 manifestly unlawful." The "order" could be considered "unlawful" if we 
consider  Nuremberg Principle IV to be the applicable "law" in this case. If 
so, then the  defendant is not protected. Discussion as to whether or not 
Nuremberg Prinicple  IV is the applicable law in this case is found in a 
discussion of the Nuremberg  Principles' power or lack of power.

"Nuremberg Principle IV, and its reference to an individual’s  
responsibility, was at issue in Canada in the case of Hinzman v. Canada. Jeremy 
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, (at  
time 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.[18][19] In 
the  decision, Justice Anne L. Mactavish addressed the issue of personal  
“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.”[18] [20]"

"On Nov 15, 2007, a quorum of the Supreme Court of Canada made of Justices  
Michel Bastarache, Rosalie Abella, and Louise Charron refused an 
application to  have the Court hear the case on appeal, without giving 

“... in written arguments to the Supreme Court of Canada, Mr. House pointed 
 out that although our courts have so far refused to grant refugee status 
to  Americans soldiers who are deserting military duty out of moral objection 
to the  war in Iraq, in 1995 the Federal Court of Appeal granted refugee 
status to a  deserter from Saddam Hussein's armed incursion into Kuwait, on 
the basis that he  should not be compelled to take part in an illegal war.

"The courts are taking one stance for Saddam Hussein's soldiers and another 
 one entirely for American soldiers," Mr. House said.[23]
See also: Jeremy  Hinzman, Anne L. Mactavish, and Canada and Iraq War 

"In June 2006, during the Iraq War, Ehren Watada refused to go to Iraq on  
account of his belief that the Iraq war was a crime against peace (waging a 
war  of aggression for territorial aggrandizement), which he believed could 
make him  liable for prosecution under the command responsibility doctrine. 
In this case,  the judge ruled that soldiers, in general, are not 
responsible for determining  whether the order to go to war itself is a lawful 
order - 
but are only  responsible for those orders resulting in a specific 
application of military  force, such as an order to shoot civilians, or to 
POWs inconsistently with  the Geneva Conventions. This is consistent with the 
Nuremberg Defense, as only  the civilian and military principals of the Axis 
were charged with crimes  against peace, while subordinate military 
officials were not so  charged.[24]
Based on this principle international law developed the concept  of 
individual criminal liability for war crimes which resulted in the current  
doctrine of command responsibility.[25][26][27]"
"The below overview of history shows a notable lack of consistency in  
rulings on the issue of Superior Orders.
This is an incomplete list, which  may never be able to satisfy certain 
standards for completion. You can help by  expanding it with reliably sourced 
(For overview purposes, the  below table attempts to capsulize much of the 
history in the above article. It  is based on references above. To navigate 
to those supporting references and  further information for each case, click 
on "see details" for each  case.)

DatePreceding ContextJurisdiction / decisionmakerDefendant(s) or  
case(s)[found] "responsible" despite Superior Orders[found] "not responsible"  
because of Superior Orders

the occupation of Breisachad hoc tribunal of the Holy Roman EmpirePeter von 
 Hagenbachyes (see details)

World War IGermany's Supreme Court (trials after World War I)Lieutenant  
Karl Neumann and othersyes (see details)

World War IINuremberg trials after World War IIall defendantsyes (see  

preparation for future casesRome Statute of the International Criminal  
Courtfuture cases under Article 33 of the Rome Statute of the International  
Criminal Courtpossibly in cases of genocide (see details)possibly in cases 
other  than genocide (see details)

Iraq WarJustice Anne L. Mactavish - Federal Court (Canada)Jeremy Hinzman  
(refugee applicant)equivalent to yes* (see details)

"*" Hinzman was not  on trial for something he did in battle. However, if 
the principle of this  particular judge's ruling had applied to such a trial, 
then Hinzman would have  been found "not responsible" because of Superior 
Orders. (see details)"

"Arguments for and against"

This "Superior Orders" defense is still used with the following  rationale 
in the following scenario: An "order" may come from one's superior at  the 
level of national law. But according to Nuremberg Principle IV, such an  
order is sometimes "unlawful" according to international law. Such an "unlawful 
order" presents a legal dilemma from which there is no legal escape: On one 
 hand, a person who refuses such an unlawful order faces the possibility of 
legal  punishment at the national level for refusing orders. On the other 
hand, a  person who accepts such an unlawful order faces the possibility of 
legal  punishment at the international level (eg. Nuremberg Trials) for 
committing  unlawful acts. Therefore this is a Catch-22 legal dilemma.
Nuremberg  Principle II responds to that dilemma by stating: "The fact that 
internal law  does not impose a penalty for an act which constitutes a 
crime under  international law does not relieve the person who committed the 
from  responsibility under international law."[28]"

"The above scenario might present a legal dilemma, but Nuremberg Principle  
IV speaks of "a moral choice" as being just as important as "legal" 
decisions:  It states: "The fact that a person acted pursuant to order of his 
Government or  of a superior does not relieve him from responsibility under 
international law,  provided a moral choice was in fact possible to him"."

"In "moral choices" or ethical dilemmas an ethical decision is often  made 
by appealing to a "higher ethic" such as ethics in religion or secular  
ethics. One such "higher ethic," which is found in many religions and also in  
secular ethics, is the "ethic of reciprocity," or the Golden Rule. It states  
that one has a right to just treatment, and therefore has a reciprocal  
responsibility to ensure justice for others. "Higher ethics," such as those,  
could be used by an individual to solve the legal dilemma presented by the  
"Superior Orders" defense."

"Another argument against the use of the "Superior Orders" defense (ie.  "I 
was just following orders") is that it does not follow the traditional 
legal  definitions and categories established under criminal law. Under 
law, a  principal is any actor who is primarily responsible for a criminal 
offense.[29]  Such an actor is distinguished from others who may also be 
subject to criminal  liability as accomplices, accessories or conspirators."

"Nuremberg Principle IV, the international law which counters the  Superior 
Orders defense, is legally supported by the jurisprudence found in  certain 
articles in the Universal Declaration of Human Rights which deal  
indirectly with conscientious objection. It is also supported by the principles 
found in paragraph 171 of the Handbook on Procedures and Criteria for  
Determining Refugee Status which was issued by the Office of the United Nations 
Commissioner for Refugees (UNHCR). Those principles deal with the  
conditions under which conscientious objectors can apply for refugee status in  
another country if they face persecution in their own country for refusing to  
participate in an illegal war."

In popular culture

"In the Christopher Buckley novel Thank You for Smoking and its film  
adaptation, the main character Nick Naylor justifies his career to a reporter 
telling her that "Everybody has a mortgage to pay," and referring to his  
response as the "Yuppie Nuremberg Defense."

"The play and film A Few Good Men revolves around the question of the  
culpability of officers giving orders which they knew to be illegal, and the  
culpability of the soldiers under their command for following such orders, 
when  such orders resulted in unintended and unforeseen consequences."

"See also
Command responsibility
Milgram Experiment
Nuremberg  Principle IV
Nuremberg Principles
Peter von Hagenbach
Respondeat  superior
Vicarious liability"

^ 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 
(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
^ a b  The evolution of individual criminal responsibility under 
international law By  Edoardo Greppi, Associate Professor of International Law 
at the 
University of  Turin, Italy, International Committee of the Red Cross No. 
835, p. 531-553,  October 30, 1999.
^ Exhibit highlights the first international war crimes  tribunal by Linda 
Grant, Harvard Law Bulletin.
^ a b An Introduction to the  International Criminal Court William A. 
Schabas, Cambridge University Press,  Third Edition
^ Command Responsibility The Mens Rea Requirement, By Eugenia  Levine, 
Global Policy Forum, February 2005
^ Judge and master By Don Murray,  CBC News, July 18, 2002.
^ The Perennial Conflict Between International  Criminal Justice and 
Realpolitik February 10, 2006 Draft by M. Cherif Bassiouni  -Distinguished 
Research Professor of Law and President, International Human  Rights Law 
DePaul University College of Law, To be Presented March  14, 2006 as the 
38th Henry J. Miller Distinguished Lecture, Georgia State  University College 
of Law, and to appear in the Georgia State University Law  Review
^ New York Times (June 5, 1921). "FREE MAN WHO SANK A HOSPITAL SHIP;  
Leipsic Judges Acquit Neumann on the Ground That He Acted Under Orders. HE  
ADMITTED TORPEDOING Prosecutor Demanded Acquittal, Calling Dover Castle 
in Carrying Wounded Soldiers.". New York Times.  
  Retrieved 10 
April 2010. 
^ 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". The Times (Times  Newspapers 
Limited). 2006-01-01.  
http://www.timesonline.co.uk/tol/news/uk/article784041.ece. Retrieved  
^ K.C. Moghalu, Global Justice: The Politics of War Crime  Trials, 
(Greenwood Publishers, 2006), sourced from Google Books.
^ Marshall,  Burke; Goldstein, Joseph (2 April 1976). "Learning From My 
Lai: A Proposal on  War Crimes". The New York Times. p. 26. 
^ Rome Statute of the International  Criminal Court (10 November 1998 and 
12 July 1999). "Rome Statute of the  International Criminal Court; Part 3: 
General Principles of Criminal Law;  Article 33: Superior orders and 
prescription of law". Rome Statute of the  International Criminal Court.  
http://untreaty.un.org/cod/icc/statute/romefra.htm. Retrieved 21 March 2010.  
^ a b Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto’s Now  
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)).  
http://reports.fja.gc.ca/eng/2006/2006fc420/2006fc420.html. Retrieved  
^ 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.  
http://www.cbc.ca/canada/story/2007/11/15/hinzman-decision.html. Retrieved  
^ "Supreme Court of Canada - Decisions - Bulletin of November  16, 2007, 
(See Sections 32111 and 32112)".  
^ Hill, Lawrence (November 24, 2007). "Just desertions". Ottawa Citizen.  
-ae35143e7685&p=1.  Retrieved 30 January 2009. 
^ Soldier's Iraq war stance backed: Watada has  right to refuse to go, 
retired officer says, Seattle Post-Intelligencer, June  20, 2006.
^ Guilty Associations: Joint Criminal Enterprise, Command  Responsibility, 
and the Development of International Criminal Law HTML version  by Allison 
Marston Danner and Jenny S. Martinez, September 15, 2004
^ Command  Responsibility - An International Focus by Anne E. Mahle, PBS
^ Command,  superior and ministerial responsibility by Robin Rowland, CBC N
ews Online, May  6, 2004
^ International Committee of the Red Cross (ICRC) References  Principles of 
International Law Recognized in the Charter of the Nüremberg  Tribunal and 
in the Judgment of the Tribunal, 1950: Introduction
^ See, e.g.,  Superior Growers, 982 F.2d at 177-78; United States v. Campa, 
679 F.2d 1006,  1013 (lst Cir. 1982).

External link
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