No CrossRef data available.
Article contents
The Legal Nature of War Crimes and the Problem of Superior Command
Published online by Cambridge University Press: 02 September 2013
Extract
One of the most crucial and controversial questions in the field of international criminal justice is that of whether “superior command” is a good defense in a war-crime trial. The answer is of cardinal importance, since trials of war criminals may prove entirely useless if accused persons are permitted simply to pass on the responsibility for their acts to their superiors. The line would lead straight to the omnipotent leader, who might choose to escape prosecution altogether by putting an end to his life. Opinions of writers on the subject are divided, and so are court decisions, war manuals, and legislative provisions. While the American and British war manuals, backed by Oppenheim's authority, recognize “superior command” as a full defense, Anglo-American practice, expressed in numerous decisions and supported by many authorities, refuses to ascribe to it any exculpating effect. Some theories recognize “superior command” as a defense to a limited extent only, dependent upon whether the subordinate actually knew, or had reasonable grounds for knowing, that a given command contemplated a punishable, or at least an illegal, action.
What has not been tried up to now, and what seems a worth-while undertaking, is to analyze the general conception of war crimes and to try to reach a solution of the indicated problem out of a clearer understanding of that conception.
- Type
- International Affairs
- Information
- Copyright
- Copyright © American Political Science Association 1944
References
1 U. S. Rules of Land Warfare, Par. 347; British Manual of Military Law, Ch. XIV, Art. 443. It is important to note that both war manuals have no statutory force, being only publications for the guidance of officers.
2 See Oppenheim's International Law (4th ed. by McNair, ), Vol. II, p. 410.Google Scholar The chapter on “superior command” in the 5th and 6th editions was written by Lauterpacht, and expresses an entirely different view.
3 See the case of Henry Wirz, commented on by Finch, G. A. in Amer. Jour. of Internat. Law, Vol. 15, p. 444 (1921)Google Scholar; the case of the Flying Fish, 2 Cranch 170; U. S. v. Jones, Fed. Cases No. 15494; Riggs v. State, 3 Cold. (Tenn.) 85; and Regina v. Thomas, reported by Bellot, in Transactions of the Grotius Society, Vol. 2, p. 47 (1917).Google Scholar
4 E.g., Stephen, J. F., A History of the Criminal Law of England (1883), Vol. I, p. 205Google Scholar; Phillipson, , International Law and the Great War, Vol. II. p. 483 ffGoogle Scholar; Lauterpacht, in Oppenheim's International Law, 6th ed., Vol. II, p. 453Google Scholar; Merignhac, , in Revue générale de droit international public, Vol. 24, p. 52.Google Scholar
5 See German Militaerstrafgesetzbuch (1872), Par. 47Google Scholar; Austrian Allgemeines Strafgesetzbuch (1852)Google Scholar, as amended by act of July 15, 1920, Pars. 535 and 560; case of the “Llandovery Castle,” Amer. Jour. of Internat. Law, Vol. 16, p. 708 ff. (1922); Hall, , International Law, 8th ed., p. 499.Google Scholar
6 An exception is made by Oppenheim, who gives the following definition: “War crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders” (International Law, 6th ed., p. 451). The British Manual of Military Law, in Art. 441, follows Oppenheim's definition almost verbatim. However, this definition is only a formal one, pointing out the responsibility of the malefactor before the courts of the offended state.
7 Oppenheim, op. cit., p. 329, refers to them in the following words: “The fact, however, that these methods are lawful on the part of the belligerent who employs them does not protect from punishment such individuals as are engaged in procuring information. Although a belligerent acts lawfully in employing spies and traitors, the other belligerent who punishes them likewise acts lawfully. Indeed, espionage and war treason bear a twofold character. For persons committing acts of espionage or war-treason are … considered war criminals and may be punished, but the employment of spies and traitors is considered lawful on the part of the belligerents.”
8 See British Manual of Military Law, Art. 441.
9 There is no essential difference between “violations of rules and customs of warfare” and “ordinary common law crimes” committed against the enemy. Most acts of war contain all essential elements of criminal acts, and are justified only by their conformity to the rules and customs of warfare. If the commission of acts of warfare is at variance with the rules of international law, the element of justification is lacking, and then such acts are to be considered as ordinary crimes under the common criminal law.
Comments
No Comments have been published for this article.