The Legal Nature of War Crimes and the Problem of Superior Command

Jacob Berger

American Political Science Review, 1944, vol. 38, issue 6, 1203-1208

Abstract: One of the most crucial and controversial questions in the field of international criminal justice is that of whether “superior command” is a good defense in a war-crime trial. The answer is of cardinal importance, since trials of war criminals may prove entirely useless if accused persons are permitted simply to pass on the responsibility for their acts to their superiors. The line would lead straight to the omnipotent leader, who might choose to escape prosecution altogether by putting an end to his life. Opinions of writers on the subject are divided, and so are court decisions, war manuals, and legislative provisions. While the American and British war manuals, backed by Oppenheim's authority, recognize “superior command” as a full defense, Anglo-American practice, expressed in numerous decisions and supported by many authorities, refuses to ascribe to it any exculpating effect. Some theories recognize “superior command” as a defense to a limited extent only, dependent upon whether the subordinate actually knew, or had reasonable grounds for knowing, that a given command contemplated a punishable, or at least an illegal, action.What has not been tried up to now, and what seems a worth-while undertaking, is to analyze the general conception of war crimes and to try to reach a solution of the indicated problem out of a clearer understanding of that conception.

Date: 1944
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