'. OBEDIENCE TO ORDEHS AS A: DEFENSE TO A CRIHlrIAL ACT A Thesis Presented to The Judge Advocate General's School; U. S. A;:,!'J.Y The •opinions and conclusions herein are those of the individual student author and do not necessarily represent the vie"Ts of either the Judge' Advocate General's School, U. S. Army, or any other governnental ?gency. References to this stUdy should include the foregoing statement. by . Captain Luther N. Norene .~ .- March, 1971 SCOFE A critical s'ci~dy 03 both international and be-ricm- la711 with respect to the plea of superior orders as a defense ko an otherwise criminal act, the possible effects of its trsatment by the courts on military discipline and inter- national law and order, and a proposal for a just treatment trith respxt to the plea. I I rl I cd 1 d I 0 I .ri I * i (d I 3 i a,. I @ I d I H I PAGE , E. C ONCLUS IOFJ- --- - - .-------------- --------------- - 84 ' 1. Sone Critical ~orinent--------------------- 84 2. A Proposal for Instruc-ting COU.~~Members on the Plea of Superior Ordp-,* s-------- 88 I TABLE OF CASES---.-------------------------------- 92 iii OBZDIIIE?TCE TO ORDERS AS A DEFENSE TO A CRIT4INAL ACT The problem of ifhbther a sol-.dierls obedience to the orders of his superior, in the performance of an ' act which is, in and of itself, considered to be crin- ina1,--whether the order and the obedience may constitute a defense available to the soldier should he be prosecuted for commission of the act by any court or tribunal--has long troubled thinking by legal scholars. A conflict arises in this area because of the appzrent conflict of two important policies, each of which are believed to bz beneficial within the community of mankind. One policy is that of discipline in the military forces; the other is that of adherence by members of the military to principles of international law. One would appeaf to require that subordinates always obey orders of their superiors; the f other would seem to denand that a subordinate willfully disobey such an order if performance of the order would constitute the commission of what would be a crime in national or international law. The two extreme, opposite theories are described1 as follows: 1. The doctrine of respondeat superior (so termed with emphasis on the lack of responsibility on the part of .- the subordinate rather than the responsibility of the 'superior), or, a.s termed by the French, I1obeissance ~-a_s_s_i-ve, according to which the soldier comiiitting an offense in 05edience to supsrior orders is relieved of responsibility automatically, without any qualification or condition. This view nay seem to fit in well with the needs of discipline in the A.rned Forces. Any armed force, by its very nature, requires discipline--that each su.bordinate obey the orders of his superiors. Such a principle is to be used, ultimately9 to conduct men to battle, to lead theln under fire to victory, and to impel them, if: and when necessary, to sacrifice their lives for their country. The primary human instinct is that of self- preservation. But the soldier is required, as a part of his military discipline, to set aside this instinct in the interests of accomplishing the nilitary objective, achieving victory in combat, pressrving the lives of other soldiers, and protecting national security. Such discipline 9 would seen, logically, to compel total and unqualified obedience without any hesitation or doubt, to orders in time of war and emergency, ad cornplenentary training and instruction in incuicating this principle of obedience in tine of pace.* One may find, in the avlals of military history, countless examples of the key role of military a discipline in decisive campaigns and of the military disasters krhich resulted from the lack of it. > I General Gunther Bllmentritt, a high commander in the German Army in World tiar I1 with extensive experience on the Eastern Front has stated that Hitlerfs fanati.ca1 order lziven in December, 194-1, to the Wehmacht--.---- before Moscow,. with the temperature having fallen to minus 30 to 40 degrees centigrade and the great mbers of Russian and Siberian forces counterattacking that the troops hold fast, regardless, in every position and in the most impos;ible circumstances, was undoubtedly correct. He must have instinctively realized that any re-treat across the snow and ice nust, within a fetr days, lead to the dissolution of the front and that if this happened the Wehrmacht would suffer the same fate that had befallen the Grcand Armee of 1812. In the circumstances then pre- vailing the divisions could not have been withdra;m roore than three to six miles a night. More could not have been asked of the,troops or of the horses in their then exhausted condition. The withdrawal could only be carried out across the open country, since the roads adtracks were blocked with snow. After a few nights this would have proven too much for the troops, who would have sinply lain dotm and died wherever they found themselves. There were no prepared positions in the rear into which they could haw been with- ' ,- drawn, nor any sort of line to which.- they could have held I 011.3 Another German, a Wehrmacht doctor named Heimich I 3 Haape, recorded the events of this period before Moscoi~: In this unezr-thly cold, in xhich the breath froze and icicles hung froa nost'ils aid eye- , lashes all day long, tfhere thin1cin.g became an effort, the German soldi.ers fought--no longer for an ideal or an ideology, no longer for the Fatherland, They fough-t; blindly ~lrithoutasking questions, without wanting to know vhat lay ahead of them, Habit and discipline kept them I going; thatbans the flicker of an instinct to stay alive. While, fo-rt~niatelyfor makind, Hitles had not 'achieved his goa1.s in this winter of 1941-42, the Germans bere able to treather both cold and Russian winter counter- offensives. By sp'ring, 1942, the Germans were a51e to return to the offensive. IJk~ilehistory informs us of the ultimate outcome of their 1942 drive to Stalingrad., disas- trous as it was for them in its aftermath, a closer look reveals their not unreasonable expectations of success at the bzgixning of the offensive. On the other side of the coin, we can perceive what can hapden in an army in which discipline is lacking by observing the performance of the French Army of 1940, In the darkness before dam on 10 Kay, the German, offensive was launched. Into the assault, the Germans threw 89 divisions, with 47 held in reserve, making s total of 136 divisions. Facing them were a total of lk9 Allied divisions, 8 106 of them French, 20 Belgian, 13 British an& 10 Dutch. By 21 May, with the Belgims and Dutch beaten, the Germans had reached the Atlantic coa.st zt; Abbeville. The Rritish Expeditionary Force, the Fyer~hFirst and Seventh Armies, and the remaining Belgian Arnj-es were encrircled in L Flanders. Though the German wedge had two exposed flafis, the French were unable to moil-nt an armo~edthrust forceful enough to pierce them and re-establish con.tacts between the Allied armies in France and in Belgium. The French had no strategic reserve, they could not withdraw troops from the Ma.ginot line, and their inadequate use of armor and shortage of airplanes left the corridor intact. 5 Furthermore, according to Mr. Rothberg the French did not have the morale and mentality to take the offensive. Hollowed out by internal dissension be-h~eenFascists and Comunists at hone, betrayed by Fif.th CoLmists and Wazi collaborators at every level of society from the lowest to the highest, ~reakenzdby a long winter of sitzkrieg, the French Army remained apathetic uld ~2~ino-t-nir.ded. An 9 incident which graphically portrays this sorry state of affairs is described by one vho was there: The colonel asked me :&ether I woul-d undsr- take to find my way back to the wood and guide both companies to the Ferme. I set out. Con- sidering that the Germans seemed to be asleep and that the E~Iouchard (German reconnaissance plane) had gone home, I decided to avoid the woods and follow the main road straight through Chatillou. This road offered an mazing spectacle. Every-where, I saw guns, knapsacks, tins of food, cartridge-cases in the ditch. Equipment worth hundreds of thousands of francs was stre\m %. along the road: no one tliought of pi.cking it up. A11 these things had becone too heavy for infantrymen. A short distance beyond Cha'cillo~l1 met a soldier sitting on his knapsack ~r~ddevouring a tin of meat. 'What regiment?!! I asked him. 1b8th Infantry1 rlhere s ycur regiment? ?Don't know. He quietly trent on eating. 'Where are you going not^?^ He looked sullenly ahead. He was z square- built, dark-haired fellow. His dark eyes had so dull a look that I thought: he wouldaft notice if.a bullet hit him. Don1t kno~~r,he said at last. I 'm loolring for my regiment.' I asked him whether they had been ordered to retreat. lAow dp I know?! said the soldier. He rubbed his knee, Adding, 'All of a sudden soneone began to yell,--Sauve aui peut--and then we ran for it.' 'Were the Geraans there? He reflected for a vhile. 'No, we di&nlt see any.! ~e rose, lo6kin.g at me with distrust. !Letts go!' Q He took his field flask and made ready to follon me.