The Defence of Obedience to Superior Orders in International Law by Dinstein Yoram;

Author:Dinstein, Yoram;
Language: eng
Format: epub
Publisher: OUP Oxford
Published: 2012-04-11T04:00:00+00:00

D. The Judgments

The Tribunals in the Subsequent Proceedings did their best to display that the provisions of general international law guided their footsteps, so that the defendants were accorded a just trial and their responsibility was established in keeping with objective criteria applicable to victors and vanquished alike. The leading principle was formulated by the Tribunal in the Ministries case as follows:

‘Both care and caution must be exercised not to prescribe or apply a yardstick to these defendants which cannot and should not be applied to others, irrespective of whether they are nationals of the victor or of the vanquished’.604

In the light of this basic tenet, the judgments weighed the doctrine of respondeat superior which had been espoused by several defence counsel and found it wanting in international law.605 In the Hostage case, for instance, the Tribunal rejected the theory advocated by Oppenheim, ruling that it had never been the prevailing view among scholars,606 and pronounced:

‘International Law has never approved the defensive plea of superior order as a mandatory bar to the prosecution of war criminals’.607

The judgments granted that discipline is indispensable to every military system, and that the first duty of the soldier is to obey orders.608 In the Hostage case, it was also underscored that the soldier is driven upon the horns of a dilemma, for he is liable to punishment whether he consents to obey the order or refuses to do so.609 Yet, first of all, as the Tribunal in the Einsatzgruppen case proclaimed in a noted passage that is suggestive of Stephen’s influence,610 the very interests of the efficiency of the army demand that discipline shall not be blind:

‘It is a fallacy of wide-spread consumption that a soldier is required to do everything his superior officer orders him to do. A very simple illustration will show to what absurd extreme such a theory could be carried. If every military person were required, regardless of the nature of the command, to obey unconditionally, a sergeant could order the corporal to shoot the lieutenant, the lieutenant could order the sergeant to shoot the captain, the captain could order the lieutenant to shoot the colonel, and in each instance the executioner would be absolved of blame. The mere statement of such a proposition is its own commentary’.611

Consequently, pronounced this judgment, one ought to draw a painstaking distinction between lawful orders, which are directly related to the military duties of the soldier, and criminal orders, which exceed these bounds, like an order issued to a soldier to steal for his commander.612 Military discipline pertains only to orders that belong to the first category, and it does not, nay, it cannot, oblige compliance with criminal orders.613

Secondly, the Tribunals did not lose sight of the other side of the coin of military discipline, namely, the interests of the supremacy of the law.614 The judgment in the High Command case observed that the outcome of an escalating transfer of responsibility would be global immunity and concentration of accountability on the shoulders of the

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