. NMT04-T0471
Volume IV · Page 471
| superior and if he accepts a criminal order
and executes it with a malice of his own, he may not plead superior orders in
mitigation of his offense. If the nature of the ordered act is manifestly
beyond the scope of the superior's authority, the subordinate may not plead
ignorance to the criminality of the order. If one claims duress in the
execution of an illegal order it must be shown that the harm caused by obeying
the illegal order is not disproportionally greater than the harm which would
result from not obeying the illegal order. It would not be an adequate excuse,
for example, if a subordinate, under orders, killed a person known to be
innocent, because by not obeying it he himself would risk a few days of
confinement. Nor if one acts under duress, may he, without culpability, commit
the illegal act once the duress ceases. The International Military Tribunal, in speaking of the principle to be applied in the interpretation of criminal superior orders, declared that — |
"The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible." |
| The Prussian Military Code, as far back as
1845, recognized this principle of moral choice when it stated that a
subordinate would be punished if, in the execution of an order, he went beyond
its scope or if he executed an order knowing that it "related to an act which
obviously aimed at a crime". This provision was copied into the Military Penal Code of the Kingdom of Saxony in 1867, and of Baden in 1870. Continuing and even extending the doctrine of conditional obedience, the Bavarian Military Penal Code of 1869 went so far as to establish the responsibility of the subordinate as the rule, and his irresponsibility as the exception. The Military Penal Code of the Austro-Hungarian Monarchy of 1855 provided — |
Article 158. "A subordinate who does not carry out an order is not guilty of a violation of his duty of subordination if (a) the order is obviously contrary to loyalty due to the Prince of the Land; (b) if the order pertains to an act or omission in which evidently a crime or an offense is to be recognized." |
| In 1872 Bismarck attempted to delimit subordinate responsibility by legislation, but the Reichstag rejected his proposal and instead adopted the following as Article 47 of the German Military Penal Code: |
Article 47. "If through the execution of an order pertaining to the service, a penal law is violated, then the superior giving the order is alone responsible. However, the obeying sub- [...ordinate] |
