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Superior Orders, Nuclear Warfare, and the Dictates of Conscience: The Dilemma of Military Obedience in the Atomic Age

Published online by Cambridge University Press:  01 August 2014

Guenter Lewy
Guenter Lewy*
Affiliation:
Smith College
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Extract

When Francis Gary Powers was asked by the presiding judge of the Soviet military tribunal trying him for espionage whether he had not considered the possibility that his U-2 flight might provoke armed conflict, the captured pilot answered, “The people who sent me should think of these things. My job was to carry out orders. I do not think it was my responsibility to make such decisions.” This article deals with a similar problem, a predicament which to this day, fortunately, has remained hypothetical, but which may become distressingly real at some time in the future. It concerns the unenviable position of the military subordinate commanded to use nuclear weapons, who may be punished today if he disobeys and prosecuted tomorrow if he obeys. The discussion initially evolves around three issues in international law: (1) the validity of the plea of superior orders as a defense in war crimes trials; (2) the question of the legality of using nuclear weapons; and (3) the present status and future of the law of war. That these problem areas are intimately related should become clear as we proceed.

The disregard for humanitarian and moral considerations which has increasingly characterized the conduct of war in the twentieth century, and, more recently, the development of nuclear weapons—the tools of mass extermination par excellence—have led many students of international law to conclude that the laws of war are dead. Grotius' doctrine of the temperamenta belli, requiring belligerents to conduct hostilities with regard for the principles of humanity and chivalry, as well as the many conventions drawn up prior to World War I in order to regulate the use of violence, are said to have become largely obsolete.

Type
Research Article
Information
American Political Science Review , Volume 55 , Issue 1 , March 1961 , pp. 3 - 23
Copyright
Copyright © American Political Science Association 1961

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References

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25 Loc. cit. “In view of Nazi excesses,” writes Julius Stone, “a conference of Allied jurists were instructed to review their respective national laws on ‘superior orders,’ then ranging from the Norwegian which excluded the plea, to the French and British and American which admitted it. The United States Rules of Land Warfare were subsequently amended along with the British and French.” Legal Controls of International Conflict: A Treatise on the Dynamics of Disputes- and War-Law (New York, 1954), p. 362, n. 75Google Scholar.

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30 Charter of the International Military Tribunal, Art. 8, quoted in Jackson, op. cit., p. 101. Art. 6 of the Tokyo Charter for the International Military Tribunal for the Far East uses almost identical language.

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46 U. S. Law of Land Warfare (1956). Art. 509(a), p. 182. Art. 330b (1) of the Law of Naval Warfare (1955) uses practically identical language. Cf. Tucker, Robert W., The Law of War and Neutrality at Sea (Washington, D. C., 1957), pp. 374–375 Google Scholar.

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49 Ibid., Art. 629, p. 177. The English law on the question of duress is more stringent than the Nuremberg trials. The judgment in The Einsatzgruppen Case, handed down by a panel of American judges, had asserted that “there is no law which requires that an innocent man must forfeit his life or suffer serious harm in order to avoid committing a crime.” Trials of War Criminals, IV, 480 Google Scholar.

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58 The statute of the International Court of Justice speaks of the writings of eminent publicists in this sense. Cf. ibid., 33.

59 So von Knieriem, for example: “If in a territory behind the front line, a local commander orders a Massacre of the Innocents, or if he orders all Jewish civilians of the district of occupation to be shot for the exclusive reason that they are Jews, nobody will believe that such acts could be justified by the laws of war, even though the harshest necessities of war be taken into account. If a subordinate ever receives such an order, he knows that it aims at a crime and nothing but a crime and all conditions of the duty of obedience are removed” (op. cit., p. 244).

60 Cf. Oppenheim-Lauterpacht, II (7th ed., 1952), 568–572.

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69 Cf. Baxter, Richard R., “The Role of Law in Modern War,” Proceedings of the American Society of International Law, Vol. 47 (1953), p. 91 Google Scholar.

70 Schwarzenberger, Georg, The Legality of Nuclear Weapons (London, 1958), p. 44 Google Scholar, hereafter cited as Schwarzenberger, Legality. My discussion of the legal aspects of nuclear warfare leans extensively upon Schwarzenberger's succinct analysis.

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72 Cf. Phillips, op. cit., note 3 above, p. 409.

73 Edward Teller wrote in 1947 that an atomic war fought with greatly perfected weapons might “endanger the survival of man,” “How Dangerous are Atomic Weapons?”, Bulletin of the Atomic Scientists, Vol. 3 (1947), p. 36 Google Scholar. This was written before the coming of the hydrogen bomb. The Nobel Prize-winning nuclear physicist Otto Hahn has stated since that 10 powerful H-bombs, surrounded with a heavy coat of cobalt, could jeopardize the continued existence of the human race, no matter where dropped. “Cobalt 60: Gefahr oder Segen für die Menschheit?”, Frankfurter Allgemeine Zeitung, February 19, 1955, and this estimate has been accepted by other scientists. For the view that human life on earth can not as yet be terminated see Lapp, Ralph E., The New Force: The Story of Atoms and People (New York, 1953), p. 97 Google Scholar.

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75 Ibid., p. 28. See also the detailed analysis in Singh, Nagendra, Nuclear Weapons and International Law (New York, 1959), pp. 155–162 Google Scholar, which leads to the same conclusion. For an authoritative discussion of radiation injuries see U. S. Armed Forces Special Weapons Project, The Effects of Nuclear Weapons (Washington, D. C., 1957), chap, xiGoogle Scholar, hereafter cited as Effects of Nuclear Weapons (1957).

76 Cf. U. S. Law of Land Warfare (1956), Art. 37(b); British Laws of War (1958), Art. 112.

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78 U. S. Law of Land Warfare (1956), Art. 38.

79 Oppenheim-Lauterpacht, II (7th ed., 1952), 344; Stone, op. cit., p. 556. F. D. Roosevelt, speaking of “poisonous or noxious gases or other inhumane devices of warfare,” stated in 1943 that “the use of such weapons has been outlawed by the general opinion of civilized mankind” and that the United States would never resort to these weapons unless in retaliation for prior use by the enemy; quoted in Sack, Alexander N., “ABC—Atomic, Biological, Chemical Warfare in International Law,” Lawyers' Guild Review, Vol. 10 (1950), p. 167 Google Scholar. This statement raises the interesting but unanswerable question whether F. D. R. would have authorized the use of the atomic bomb on two densely populated Japanese cities. He had ordered its development to forestall a German effort and might have kept it in reserve, as gas was. Cf. Spaight, J. M., The Atomic Problem (London, 1948), p. 41 Google Scholar.

80 Oppenheim-Lauterpacht, II (7th ed., 1952), p. 348. See also Spaight, , Atomic Problem, pp. 23–25 Google Scholar; Greenspan, op. cit., pp. 374–375.

81 Oppenheim-Lauterpacht, II (7th Ed., 1952), p. 350.

82 Loc. cit. See also Nurick, Lester, “The Distinction between Combatants and Noncombatants in the Law of War,” American Journal of International Law, Vol. 39 (1945), p. 680 CrossRefGoogle Scholar, and Charles G. Fenwick's comments on Downey's, William G. paper “Revision of the Rules of Warfare” in Proceedings of the American Society of International Law, Vol. 43 (1949), p. 110 Google Scholar.

83 Quoted in Goodhardt, Arthur L., What Acts of War are Justifiable? (Oxford, 1940), p. 16 Google Scholar. The complete draft convention is reproduced in Spaight, , Air Power (1947), pp. 498–508 Google Scholar.

84 This promise was made by Britain and France in response to an appeal by Roosevelt on September 1, 1939. Hitler had agreed to abide by the same commitment. Cf. Schwarzenberger, Georg, Power Politics: A Study of International Society (2d ed.; London, 1951), p. 548 Google Scholar.

85 Quoted in Spaight, , Air Power (1947), p. 257 Google Scholar.

86 Cf. McDougal, Myres S. and Feliciano, Florentino P., “International Coercion and World Public Order: The General Principles of the Law of War,” Yale Law Journal, Vol. 67 (1957–1958), p. 833 Google Scholar.

87 Tedder, Lord, Air Power in War (London, n.d. [1948]), p. 98 Google Scholar. Sir Arthur Harris related that when he became Commander-in-Chief of Bomber Command in February 1942, “the main and almost only purpose of bombing was to attack the morale of the industrial workers.” Bomber Offensive (New York, 1947), p. 76 Google Scholar.

88 Quoted in U. S. Strategic Bombing Survey, Over-all Report (European War) (n.p., 1945), p. 3 Google Scholar.

89 The British raids on Hamburg in July and August 1943, for example, destroyed seventy-five per cent of the city and killed between 70,000 to 100,000 people, most of them being burnt to death. The Allied attack on Dresden in February 1945 is supposed to have caused more than 100,000 fatal casualties, many of them refugees from the Russian advance in the East. There is room for the view that many German and Japanese cities suffered as grievously and on as great a scale as Hiroshima and Nagasaki. The number killed by the German bombing of Great Britain throughout the war is given as 60,585. Spaight, , Air Power (1947), p. 29 Google Scholar. Needless to pay this discrepancy is not due to the greater sense of humanity on the part of the German military leaders but mainly to the weakness of the Luftwaffe.

90 That morale bombing failed to achieve the expected results is admitted by the U. S. Strategic Bombing Survey. See also the discussion of Blackett, P. M. S., Fear, War and the Bomb: Military and Political Consequences of Atomic Energy (New York, 1948), p. 22 Google Scholar.

91 According to one American student of Soviet strategy, the primary objective of Soviet “military operations is the destruction of hostile military forces, and not the annihilation of the economic and population resources of the enemy.” Cf. Garthoff, Raymond L., Soviet Strategy in the Nuclear Age (New York, 1958), p. 71 Google Scholar. Since the dominant view in the United States, however, seems to be that a future war can be won by disrupting the enemy's capacity and will to fight, i. e., by concentrating on attacking his economic and population centers, Soviet strategy is unlikely to remain as planned and undoubtedly will become one of retaliation in kind.

92 Based on a detailed investigation of all the facts, the U. S. Strategic Bombing Survey expresses the opinion “that certainly prior to 31 December 1945, and in all probability prior to 1 November 1945, Japan would have surrendered even if Russia had not entered the war, and even if no invasion had been planned or contemplated.” Summary Report, Pacific War (Washington, D. C., 1946), p. 26 Google Scholar. See also Kecskemeti, Paul, Strategic Surrender: The Politics of Victory and Defeat (Stanford, 1958), ch. 6Google Scholar, and Butow, Robert J. C., Japan's Decision to Surrender (Stanford, 1954)Google Scholar.

93 Cf. Singh, op. cit., p. 193; Oppenheim-Lauterpacht, II (7th ed., 1952), 349. The same would probably hold true for target area saturation bombing with conventional explosives. Cf. Spetzler, Eberhard, Luftkrieg und Menschlichkeit: Die völkerrechtliche Stellung der Zivilpersonen im Luftkrieg (Göttingen, 1956), p. 290 Google Scholar. For the opposite view see Spaight, J. M., Bombing Vindicated (London, 1944), p. 98 Google Scholar.

94 Stone, op. cit., p. 631.

95 This point is well made by Ford, John C. S.J., “The Morality of Obliteration Bombing,” Theological Studies, Vol. 5 (1944), p. 276–285 CrossRefGoogle Scholar.

96 ”If a 10-meg. H-bomb ‘clean’ or ‘dirty’ should be dropped,” writes Noel-Baker, “everything would be destroyed by blast or burnt, and few human beings would survive, within a circle of more than twenty miles across.” The Arms Race: A Programme for World Disarmament (London, 1958), p. 135 Google Scholar. “A 30-megaton bomb,” according to Jack Shubert and Ralph E. Lapp, “could spread its lethal dose over 14,000 square miles—an area equal to that of Massachusetts, Rhode Island, and Connecticut.” Radiation: What it is and How it Affects You (New York, 1957), p. 239 Google Scholar.

97 Cf. Singh, op. cit., p. 202. For the text of the conventions see U. S. Treaties on Land Warfare (1958), pp. 24–194 Google Scholar.

98 Singh, op. cit., p. 106. Robert W. Tucker, consultant to the U. S. Naval War College, writes: “There should be little doubt that, as judged by the traditional meaning given to the principles distinguishing combatants and non-combatants, the use of nuclear weapons against cities containing military objectives must be deemed illegal.” Op. cit., p. 55, n. 21.

99 International Committee of the Red Cross, Draft Rules for the Limitation of the Dangers Incurred by the Civilian Population in Time of War (2d ed.; Geneva, 1958), Art. 14, p. 12 Google Scholar, hereafter cited as ICRC Draft Rules (1958). The same conclusion is reached by Tucker, op. cit., p. 55.

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105 Cf. Corbett, op. cit., p. 268. The authorization granted the two World Courts to apply “the general principles of law recognized by civilized nations” has so far been used sparingly. Cf. Sørensen, Max, Les sources du Droit International: Etude sur la jurisprudence de la Cour Permanente de Justice Internationale (Copenhagen, 1946)Google Scholar. A currently conducted research projecton this topic, reported by Schlesinger, Rudolf B. in the American Journal of International Law, Vol. 51 (1957), pp. 734–753 CrossRefGoogle Scholar, apparently does not include the law of war.

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108 Quoted in Jackson, op. cit., p. 101. During the war, the Nazis had allowed and encouraged the lynching of Allied “terror fliers.” In 1952 a German court ruled that since the Allied “bomb attacks against the civil population violated the Hague convention and possibly were crimes against humanity,” the killing of a captured U. S. airman by storm troopers in 1944 had not been murder but manslaughter. New York Times, 11 16, 1952, p. 30 Google Scholar. The Japanese formally tried and executed a considerable number of Allied airmen for bombing the civilian population. See Hyde, Charles Cheney, “Japanese Executions of American Aviators,” American Journal of International Law, Vol. 37 (1943), pp. 480–482 CrossRefGoogle Scholar, and Pal, R. B., International Military Tribunal for the Far East: Dissentient Judgement (Calcutta, 1953), pp. 675–693 Google Scholar. Judge Pal holds these trials to have been legal under international law.

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110 Stone, op. cit., p. 326.

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113 Quoted ibid., p. 233, n. 2.

114 Cf. U. S. Law of Land Warfare (1956), Art. 3.

115 The existence of this right is asserted by Stone, op. cit., pp. 352–53. For the opposite view see Dunbar, N. C. H., “Military Necessity in War Crimes Trials,” British Year Book of International Law, XXIX (1952), p. 443 Google Scholar. Schwarzenberger calls the principle of self-preservation “a psychological, but not a legal principle” (Legality, p. 42).

116 According to the U. S. memorandum attached to the report of the League of Nations Commission on Responsibilities, “the assertion by the perpetrator of an act that it is necessary for military reasons does not exonerate him from guilt if the facts and circumstances present reasonable grounds for establishing the need-lessness of the act …” Quoted by Dunbar, , British Year Book of International Law, XXIX, p. 444 Google Scholar. There can be little doubt that in the unlikely event of a Japanese victory in World War II the Japanese would have been on solid ground in rejecting the plea that the use of the atomic bomb was justified by military necessity.

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119 The quoted words are those of Gromyko, speaking to the United Nations Atomic Energy Commission in 1946, quoted in Phillips, op. cit., p. 413.

120 Stone, op. cit., p. 329. Whether the victor will be willing to entertain this excuse remains, of course, an open question.

121 Phillips, op. cit., p. 323.

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128 Kunz, Josef L., “The Laws of War,” American Journal of International Law, Vol. 50 (1956), p. 337 CrossRefGoogle Scholar. See also his earlier article, “The Chaotic Status of the Laws of War and the Urgent Necessity of their Revision,” ibid., Vol. 45 (1951), p. 37–61.

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