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Volume IV · Page 338
| explanations of Wharton, who refers to
statements by Chief Justice Cockburn. There it is said that authors in the
field of international law, no matter how valuable their efforts may always be
with respect to the interpretation and definition of fundamental legal
provisions, cannot make any laws, because laws, in order to be binding, require
the agreement of the nations, which can take place by treaty or through
suitable statements by the respective governments, or even through established
tradition.¹ A conviction, therefore, cannot be based on the fact that
individual scholars of international law adopt the viewpoint that the appeal to
a superior order is inadmissible. Moreover, the question of the admissibility of the appeal to the superior order is very much contested in legal literature. It is in no case rejected by the majority of authors. The appeal to a superior order is first declared admissible, as already mentioned by Winthrop, who recognizes as a defense the fact that the incriminating act was committed in pursuance to an order by a superior.² Likewise Garner, the well-known Professor of International Law at the University of Illinois, declares that it would be unjust to deny the right of a person under military orders to appeal to a superior order. Garner particularly emphasizes that it is not the task of a military subordinate to examine the lawfulness and legality of a military command.³ He is of the opinion that justice requires that that person be punished, first of all, who bears the responsibility for the order and not that person who acts under duress.4 Professor George Manner of the University of Illinois is also of the same opinion.5 Likewise Oppenheim, the well-known British Professor of International Law, has adopted the view of his work "International Law" that the appeal to the superior order is admissible. In this |
¹ Wharton, Elements of International Law, p. 23: "'Writers on international law'. Says Lord Chief Justice Cockburn, 'however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be expressed as by treaty or the acknowledged concurrence of government, or may be implied from established usage'."
² Winthrop, Military Law and Precedents, p. 296: "That the act charged as an offense was done in obedience to the order — verbal or written — of a military superior is, in general. a good defense at military law."
³ Garner. Vol. II, p. 484: "He cannot discuss or question the commands that are given him; he is not the judge of their legality or illegality; and if he were, his ignorance of the laws of war would in many cases make him an incompetent judge."
4 Garner, Vol. I, p. 484: "In such cases therefore justice, it is said, requires the punishment of the officer who is responsible for the order rather than the simple soldier who acts by constraint and who has a power of judgment or discretion."
5 Manner, The Legal Nature and Punishment of War Crimes, p. 433: "Secondly, it appears to be equally admitted that the defenses act of State and superior orders and the maxim nullum crimen, nulls poena sine lege condition any prosecution for war crimes. The very fact that the writer suggests a reappraisal of these orthodox principles is only further proof of their general acceptance in positive law. 102". — 102 Glueck, 10 ibid., p. 145.
