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From Nuremberg to Rome: Restoring the Defence of Superior Orders

Published online by Cambridge University Press:  17 January 2008

Hilaire McCoubrey
Hilaire McCoubrey
Affiliation:
The author was Professor and Director of Postgraduate Affairs in Law and Director of the Centre for International Defence Law Studies at the University of Hull. Sadly he died suddenly shortly after submitting this article.
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Extract

A plea of superior orders in response to charges founded upon violations of the international laws of armed conflict has since 1945 been treated as a plea in mitigation of sentence rather than as a defence, a position founded upon article 8 of the 1945 Charter of the International Military Tribunal at Nuremberg. In 1998 the draft Statute of the proposed permanent International Criminal Court appeared, by article 33, to “restore” superior orders as a defence, a move deprecated by some as an apparent softening of the international legal approach to war crimes in an age in which such violations are all too prominently before the world's scrutiny. In fact both the formerly received “Nuremberg” doctrine and the appearance of a radical change, or reversion, in the 1998 Statute can be argued to be erroneous. It is the contention of this paper that far from advancing a new and stricter doctrine, the Charter of the IMT at Nuremberg correctly applied pre-existing doctrine in extreme and unusual circumstances but was mistakenly taken to have developed a new approach which was then applied with potentially distorting effect for the generality of circumstances. In this view the 1998 Statute has merely recognised the essential doctrine of superior orders as it existed prior to 1945 and which, properly understood, should not have been thought essentially to have been changed even in 1945.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 50 , Issue 2 , April 2001 , pp. 386 - 394
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. (1816) 4 M&S, 41.Google Scholar

2. (1990) 17 S.C.R., 561.Google Scholar

3. Ibid.

4. For discussion of the general case jurisprudence see Green, L. C., Superior Orders in National and International Law (A. W. Sijthoff, 1976, especially at pp.122 ff.).Google Scholar

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6. The modern equivalent is 1949 Geneva Convention II, specifically article 34.

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15. On 12 Sept. 1942 the British liner Laconia was torpedoed by a U-boat whose captain and crew, and the crews of two other U-boats summoned to assist, rescued some 1500 people. Towing lifeboats, the U-boats headed towards the shore but were fired upon by an American B-24 bomber, forcing the U-boats to cut the lines, thereby abandoning the survivors to the sea. Following this incident, Grand Admiral Doenitz made the following order:

1. Every attempt to save survivors of sunken ships, also the rescuing of swimming men and putting them on board lifeboats, the setup of overturned lifeboats, the handing over of food and water, have to be discontinued. These rescues contradict the primary demands of warfare especially the destruction of enemy ships and their crews.

2. The orders concerning the bringing in of skippers and chief engineers stay in effect.

3. Survivors are only to be rescued if their statements are important for the boat.

4. Stay hard. Don't forget that the enemy didn't take any regard for women and children when bombarding German towns.

16. See above.

17. See 1949 Geneva Convention I, article 47; Convention II, article 48; Convention III, article 127; Convention IV, article 144; see also 1977 Additional Protocol I, article 83 and 1977 Additional Protocol II, article 19.

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