[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
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
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
he
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
deemed
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
rejected."
"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
Superior
Orders:
“… 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
is
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
trials.[15])"
"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
place
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
Japanese
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
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, (at
that
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
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.”[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
reasons.[21]
[22]
“... 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
resisters
"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
treat
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
additions.
(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
1474
the occupation of Breisachad hoc tribunal of the Holy Roman EmpirePeter von
Hagenbachyes (see details)
1921
World War IGermany's Supreme Court (trials after World War I)Lieutenant
Karl Neumann and othersyes (see details)
1945
World War IINuremberg trials after World War IIall defendantsyes (see
details)
1998
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)
2006
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
act
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
criminal
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
High
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
by
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"
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
^ 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
Institute,
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
Culpable
in Carrying Wounded Soldiers.". New York Times.
http://query.nytimes.com/gst/abstract.html?res=9C04EEDA1739E133A25756C0A9609C946095D6CF.
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
2008-02-08.
^ 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
Magazine.
http://www.nowtoronto.com/news/story.cfm?content=153504&archive=25,38,2006.
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
2008-06-16.
^ 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
2008-06-02.
^ "Supreme Court of Canada - Decisions - Bulletin of November 16, 2007,
(See Sections 32111 and 32112)".
http://scc.lexum.umontreal.ca/en/bulletin/2007/07-11-16.bul/07-11-16.bul.html.
^ Hill, Lawrence (November 24, 2007). "Just desertions". Ottawa Citizen.
http://www.canada.com/ottawacitizen/news/story.html?id=16d90480-ccf6-4e3d-9848
-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
usmilitary.about.com: To Obey or Not to Obey
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