Beautiful Souls: Saying No, Breaking Ranks, and Heeding the Voice of Conscience in Dark Times by Press Eyal

Author:Press, Eyal [Press, Eyal]
Language: eng
Format: mobi
Publisher: Farrar, Straus and Giroux
Published: 2012-02-13T23:00:00+00:00

II. Black Flags

“If members of the armed forces commit violations by order of their Government, they are not war criminals and may not be punished by the enemy.” So wrote the German jurist Lassa Oppenheim in one of the most influential treatises on international law published in the first half of the twentieth century. Oppenheim would go on to draft the British Manual of Military Law, issued in 1914, Article 443 of which affirmed that if soldiers carried out inhumane and unlawful orders, the fault lay solely with their superiors. That same year, the U.S. Army enacted a similar code. Subordinates could not be punished for committing offenses “under orders or sanction of their government or commanders,” it held. Lawful or unlawful, justified or not, combatants were expected to follow the orders they received. There was no duty to refuse.

This was the prevailing view among Western legal experts—until World War II, until the prospect of Nazis invoking the Superior Orders defense at the Nuremberg Trials prompted reconsideration. The mass murder of Jews, Communists, and intellectuals carried out by the Einsatzgruppen, the industrial-style slaughter in the camps: by the standard laid out in the British and American military codes, judges would have had little choice but to exonerate all but the highest-ranking perpetrators of these crimes, perhaps everyone save Hitler himself. But by 1945, the Allied powers had adopted a new standard. The revised British Manual code, issued one year earlier, held that subordinates could not claim immunity “if in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity.” The new code adopted by the U.S. military stipulated that combatants who “violate the accepted laws and customs of war may be punished.” The timing of these changes was not an accident. “It was the historical experience of Nazi war crimes, conducted pursuant to superior orders, that led national and international legislators to reassess the relative dangers to their societies of obedience to unlawful orders and disobedience to lawful ones,” notes Mark J. Osiel.

Neither at Nuremberg nor afterward were the pressures that subordinates faced casually dismissed. “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,” stated Nuremberg Principle IV. As we’ve seen in the case of Drazen Erdemović, the Croat who participated in the Srebrenica massacre after being told he’d be shot if he refused, sometimes a moral choice isn’t possible. Most legal experts recognized that lower-ranking officers and combatants often faced demotion, imprisonment, or worse fates if they resisted orders, particularly in undemocratic societies, and that members of the armed forces were frequently given instructions to commit violent acts whose legality was murky. But while these circumstances could be cited to mitigate the sentences that defendants faced, they could no longer be invoked to evade responsibility for war crimes altogether.

Or so it was agreed when the victors of World War II sat in judgment of the Nazis.

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