. NMT04-T0331
Volume IV · Page 331
| [com...] manders of submarines could not be
held personally responsible for orders which they had received from their
hierarchic superiors.¹ In England, too, the regulation concerning the plea of superior orders as laid down in the Washington Agreement of 6 February 1922 was rejected. This is shown by the fact that commanders of German submarines of the First World War were cordially welcomed by their English comrades, whereby they were assured that they would not be held responsible for the execution of orders received from their admiralty.² This is taken from the "American Journal of Military Law", 1938, page 256. Consequently, there is no agreement by the community of nations that a plea of superior orders shall not be admissible. Furthermore, it cannot be found that there exists a general conception of law by the states according to which the plea of superior orders would not be admissible. At all events, such a conception of law did not find its expression in the actions of the states. This can be seen (a) from the declarations and decisions of international congresses, (b) from the field manuals of the armies and the criminal codes of the states, (c) from the scholarly opinions of generally recognized teachers of international law. As for (a). — During the peace conference in 1919 a commission occupied itself with the problem whether or not a plea of superior orders frees from responsibility, and it laid down its opinion in a report.³ This commission did not declare the plea of superior orders to be inadmissible, but left it to the judgment of the court whether or not the plea of superior orders frees the defendant from his responsibility. In this report, it is expressly said that the court has to decide on the question whether a plea of superior orders is sufficient to acquit a person charged with responsibility. This regulation was the result of the following deliberations, which are shown in the aforementioned book by Garner. |
¹ Raoul Genet, editor of the "Revue Internationale francaise du droit" in the periodical "American Journal of International Law," April 1938. "The charge of piracy in the Spanish civil war", p. 266, "During the negotiation of the treaty signed at Washington, France (which, however, did not ratify) had contended that the commanders of submarines could not be held personally responsible for orders which they had received from their hierarchic superiors."
² "American Journal of International Law;" 1958, D. 266: "It may be noted in passing that England probably thought the same, since, not long ago, certain wartime commanders of German submarines were cordially welcomed by their British colleagues, who assured them that they did not deem them responsible for the execution of orders received from their Admiralty."
³ Published in 46 Clunet (1919) p. 181 ff, excerpted from German, International Law in the World War (1920), volume II, p. 490: "It will be for the court to decide whether a plea of superior orders is sufficient to acquit the person charged with responsibility."
