. NMT04-T0337
Volume IV · Page 337
| justice in respect to the unlawful orders
given by Hitler? Under the present circumstances, it is simple to assert that
the defendants ought not to have carried out the order. No answer, however, can
be given to the question what action they ought to have taken, in the situation
in which they were at that time, to prevent the execution of the order. Even
according to the prevailing German law itself, unlawful orders are
effective.¹ According to the French penal code too, the soldier is obligated to obey an order of the legitimate authorities, regardless of whether the order is lawful or not. The soldier solely has a right to complain after the execution of the order. In this connection, I refer to the statement by Cobbett.² Moreover Garner, who in his statements refers, among others, to the view of Professor Nast of Nancy University and to the example mentioned by the latter, has come to the same conclusion.³ Professor Nast has added further explanations to this question. In this he comes to the conclusion that the sedes materiae of French law is article 64 of the Penal Code, according to which an act committed under duress does not constitute a crime. Among these acts Professor Nast also includes cases in which a soldier has to carry out orders. In this connection, Nast also mentions the Belgian and Dutch Criminal Codes, which contain the same provisions. In this connection, he refers particularly to Article 43 of the Dutch Criminal Code, according to which a defendant is expressly exonerated by orders from superior authorities.4 As for Authors’ Hypotheses — The hypotheses adopted in legal literature are not sources of international law. This is generally recognized in international law. I particularly call attention to the |
¹ So binding, Manual of the Penal Code (1886), p. 804, furthermore Girginoff, p. 18, Battenberg, p, 3, 73, Frank, p. 143 and Eberh. Schmidt, p. 68. Very clearly in this meaning RMG. 1, 63; evidently also Rittau, decree 2, (p. 98 ibid.)
² Cobbett, vol. II, p. 176/77: "By the French penal code the civilian is immune if the order is lawful and commanded by the legitimate authority. But it has been held that the soldier is bound to obey the order of the legitimate authority, whether lawful or not. He may also protest afterwards."
³ Garner, vol. II, p. 486: "Article 64 of the French criminal code lays down the rule that an act committed by a person who has been constrained by force is neither a crime or a misdemeanor (Délit.). Professor Nast of the University of Nancy has expressed the opinion that the immunity would rover the case of a soldier who is compelled to commit an act in violation of the laws of war and that therefore German soldiers who were compelled by their commanders to participate in the spoliation of French industrial establishments and the removal of their machinery to Germany, although the acts were contrary to the Hague Convention, were not liable to arrest and trial by the French courts:"
4 Prof. Next, Revue Generale de Droit International Public, 26 (1919), p. 123: "The crucial sedes materiae in French law appears to be Article 64 of the Criminal Code according to which an act committed under duress (which apparently includes the case of a soldier bound to obey orders) is neither a crime nor a misdemeanor. Art. 327 excludes liability in case of acts 'ordonnés par la lot et commandés par l'authorité' . So does Article 190, Articles 70 and 71 of the Belgian Penal Code reproduce substantially Articles 64 and 327 of the French Penal Code. Article 49 of the Dutch Criminal Code recognizes generally the defense of superior orders, while Art. 40 lays down the several exception of duress."
