Practice Relating to Rule 155. Defence of Superior Orders
Germany’s Military Manual (1992) provides:
A plea of superior orders shall not be acknowledged if the subordinate realized or, according to the circumstances known to him, obviously could have realized that the action ordered was a crime (§ 5 of the Military Penal Code).
Under Germany’s Military Penal Code (1957), as amended in 2001, a person acting pursuant to an order of a superior is not relieved of criminal responsibility if he/she realized or, according to the circumstances known to him, should have realized that the order was a crime. The court can mitigate punishment if, taking circumstances into account, the personal liability of the subordinate is limited.
Germany’s Law on the Legal Status of Military Personnel (1995) provides:
An order may not be complied with if, by that, a criminal act would be committed. If the subordinate nevertheless complies with the order, he/she is guilty only if he/she realizes or if, under the circumstances known to him/her, it is obvious to him/her, that, by that, a criminal act would be committed.
Germany’s Law Introducing the International Crimes Code (2002) provides:
Whoever commits an offence [consisting of a war crime, a violation of the duty of supervision or the omission to report a crime] in execution of a military order or of an order comparable in its actual binding effect shall have acted without guilt in so far as the perpetrator does not realize that the order is unlawful and in so far as it is also not manifestly unlawful.
In its judgment in the Dover Castle case in 1921, Germany’s Imperial Court held:
It is a military principle that the subordinate is bound to obey the orders of his superiors. This duty of obedience is of considerable importance from the point of view of criminal law. Its consequence is that, when the execution of a service order involves an offence against the criminal law, the superior giving the order is alone responsible.
The Court further held that the punishment of a subordinate, who had acted in conformity with his orders, could, under German military criminal law at the time, arise (1) if he had exceeded the order given to him, (2) he was aware that his superior’s orders directed action which involved a civil or military crime or misdemeanour. In the relevant case, the Court did not consider that either of these elements was present and the accused, the commander of a submarine from which a British hospital ship had been torpedoed, was acquitted.
In the Llandovery Castle case in 1921, in which a British hospital ship had been torpedoed and destroyed and her lifeboats fired on, Germany’s Imperial Court rejected the plea of superior orders forwarded by two of the accused. It stated that the accused should be deemed to have had knowledge of the unlawful character of the order they carried out and stated that the defence could not be brought forward
if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law … In the present case it was perfectly clear to the accused that killing defenceless people in the lifeboats could be nothing but a breach of law.
In its judgment in the Subordinate’s Responsibility case
in 1986, Germany’s Federal Court of Justice held that a subordinate who had recognized an order as unlawful would not be relieved from his responsibility even if his superior was ignorant of the illegality of the order.
In 2003, in the Executions and Superior Orders case, Germany’s Higher Social Court Baden-Württemberg held:
1. It is contested between the parties whether, according to Section 1 a of the Federal War Victims Relief Act [Bundesversorgungsgesetz – BVG], the respondent can withdraw the injury-based maintenance benefits granted to the applicant.
29. Section 1 a of the Federal War Victims Relief Act, introduced by the Law of 14.01.1998 (Federal Law Gazette I p. 66) and in force since 28.01.1998, provides:
(1) Benefits are to be denied if the entitled person …, during the regime of national socialism, has violated the principles of humanity or rule of law and has applied for benefits after 13 November 1997.
Indications which require a particularly intensive examination whether an entitled person has violated the principles of humanity or rule of law by his individual behaviour can in particular result from the entitled person’s voluntary SS membership.
33. On the basis of this provision, the respondent had the right to withdraw the applicant’s maintenance benefits starting on 01.01.2000.
35. The principles of humanity or rule of law are closely connected. The Federal Administrative Court Bundesverwaltungsgericht – BVerwG] does not differentiate between them. What is meant is the core content of inalienable rights of the individual person, which can never be materially removed or limited and which had validity also in the time of national socialism … In order to assess what belongs to this core of inalienable rights, the Federal Administrative Court turns to international human rights documents, such as the European Convention on Human Rights or the Universal Declaration of Human Rights of 10.12.1948. There, e.g. the right to life (Article 2 of the European Convention on Human Rights) is guaranteed. A “violation” of the principles mentioned requires a concrete, spatially and temporally defined behaviour, possible to prove, which goes against the content of the principles or which does not oppose their violation – although such opposition would be possible and could be reasonably expected …
36. The Senate takes as fact that the applicant, as a member of the 1st SS infantry brigade (mot.), which organizationally belonged to the command staff of the Reichsfuehrer SS, participated in an execution by shooting in a small town in the part of Poland earlier under Russian occupation in late summer/early autumn 1941, directed against all inhabitants of the locality (men, women and children), without previous combat operations. That the applicant thereby violated the principles of humanity and rule of law in a downright text book case is obvious and does not require a further substantiation. The killing of civilians not participating in war operations, in particular of women and children, has for a long time been prohibited under public international law (comp. Hague Regulations of 1907 as well as Geneva Convention of 1929). It further shall be recalled that after 1945 the principles of humanity were presented first in the Charter of the International Military Tribunal in Nuremberg of 08.08.1945 and later in Control Council Law No. 10 of 20.12.1945. Article 2 of Control Council Law No. 10 contained the penalization of crimes against humanity, to which belong, inter alia, murder, extermination and inhumane acts against the civilian population …
37. The applicant fulfills also the subjective requirements of Section 1 a of the Federal War Victims Relief Act. On the subjective side, a violation of the principles of humanity or rule of law requires behaviour which is attributable, reproachable and therefore culpable … This is not the criminal law notion of guilt, which would require a concrete intent related to a criminal act punishable according to the laws at that time … The exclusion of rights according to Section 1 a of the Federal War Victims Relief Act is not a penalty, but is based on the principle of forfeiture. For culpability according to this provision it is sufficient that the person in question (compos mentis in the sense of Sections 104 no. 2, 827 of the German Civil Code) knew the facts which make his behaviour inhumane or contrary to the rule of law, and that he either was aware that his behaviour was inhumane or contrary to the rule of law, or would have needed to be aware of it, when testing his conscience in the way that could reasonably be expected from him … The Senate is convinced that the applicant was quite aware that the execution violated elemental principles of law, basic to all legal orders. This can be concluded from his statements that he and his fellow soldiers were all trembling and that he had not enjoyed his meals in the following two weeks[;] that he had been sick of the thing already before the shooting, i.e. he was terribly shocked.
38. The applicant wrongly invokes a so-called situation of necessity due to superior orders. Although the application of Section 1 of the Federal War Victims Relief Act, as described above, does not require guilt in the criminal law sense, and although the circumstances potentially exculpating the person in question therefore do not have to belong to the strictly limited reasons excluding guilt under criminal law, the latter could certainly also be exculpating reasons … A person cannot be blamed under Section 1 a of the Federal War Victims Relief Act for behaviour in the past, if today, under a criminal law assessment of the behaviour, guilt would be excluded. However, the view of the lower Social Court that the applicant was in a situation of necessity due to superior orders, making his acts lawful, cannot be contended and is beyond discussion. It may be debated in criminal law literature whether there can be an “unlawful binding order”, and whether for a subordinate a materially unlawful, but nevertheless binding order is a special ground excluding unlawfulness, or only a ground excluding guilt … This is however different in cases of manifestly unlawful and, in particular, criminal orders. Here only duress, excluding guilt, can be considered, as it is today regulated in Section 35 of the Criminal Code. However, also the requirements of that provision are not fulfilled. Already in 1967, Herbert Jäger, in his book “Crimes under totalitarian rule – Studies on national socialist violent crime”, to which the Senate was pointed by the Institute of Contemporary History in Munich, came to the conclusion that so far no case had been found in which a subordinate had suffered damage to life or limb in consequence of a refusal of, or non-compliance with, a criminal order. This was fully confirmed by the expert witness Dr. B in his opinion of 16.02.2003, based on the current state of research. The only potential basis excluding guilt remaining is therefore so-called subjective duress by coercion or putative duress. One needs to concede to the applicant that in the case law of the Federal Court of Justice the requirements of the duress provisions have been seen as fulfilled in isolated cases, in which criminal orders were to be executed. This was the case, for example, in the situation underlying the judgement of 14.01.1964, which concerned the participation in the mass shooting of Jewish inhabitants of a Belorussian town. On the other hand, the Federal Court of Justice underlined that the guilt of a person invoking duress by coercion can only be excluded if that person conscientiously did the utmost to escape the danger or putative danger in a way avoiding the commission of the crime, without having found such a way out. The graver the crime one is coerced to do, the stricter the requirements to be applied to that examination. The coerced person or putatively coerced person must have applied all mental and physical abilities … In the present case, the Senate is not convinced that the applicant did his utmost to avoid the unlawful act, without having found a way out. He not even thought about how to avoid the commission of the execution order. In view of the monstrosity of the order put to him, he at least would have been expected to ask his military leaders about the sense of the execution. He also would have had time for such considerations. Already when, early in the morning, it was ordered to drive the persons out of their houses and, if necessary, immediately shoot those who resisted this, it had to be clear to him that there was something going on which had nothing to do with regular conduct of war. That it was a case of shooting civilian persons was known to the applicant at the latest when he – already some time before – saw the graves excavated in the forest. Otherwise he would not have stated that they “had been sick of the thing already before the shooting”.
40. As the applicant himself stated during his questioning on 08.08.1961, in the case of the second group with women and children several shooters were no longer prepared to follow the shooting order. They missed intentionally. This affirms the conviction of the Senate that the applicant omitted to search for a way out, to avoid the commission of the order he had realized was criminal.
In 2005, on the applicant’s revision, the Federal Social Court held:
In Section 1 a of the Federal War Victims Relief Act the legislator … has used a traditional pair of concepts already approved also by the Federal Constitutional Court, which combines self-evident ethical-moral fundamental values that are the basis of any human social life … The principles of humanity comprise the core content of human rights inalienable in any situation of life, which therefore can never be materially removed or limited … They are the elementary principles, indispensable for human social life and for a minimum of just state order, which belong to the inviolable area of the law … Among the generally accepted and inviolable human rights is, first of all, the right of every human being to life and physical integrity … It is a natural and always valid imperative of humanity to protect this right against State arbitrariness, also unlawful acts of war … In view of that, there is no need to determine in detail which are the sources of these principles … The Federal Administrative Court derives them from the moral law and the natural rights of the individual preset to every legal order … Ultimately, they are to be deduced from the order of existence, into which the human is put as a rational and sensitive being. He has to integrate himself into this order if he does not want to existentially and lastingly endanger himself and his species … Apart from that, the principles of humanity are reflected, e.g., in the Charter of the International Military Tribunal in Nuremberg of 8 August 1945, according to which crimes against humanity are war crimes in the narrower sense. The background of the regulation was to be able to punish as war crimes in particular enslavement, deportation, extermination and other inhumane acts, committed against any civilian population, especially the Jewish, and to be able to put to trial the perpetrators. Comparable provisions were contained in Control Council Law No. 10 of 20 December 1945 … Article 2 of the Law provided criminal punishment for crimes against humanity, inter alia for extermination, imprisonment, murder, persecution on political, racial or religious grounds, rape, deportation and inhumane treatment of the civilian population … The UN Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 …, Article 2 and Article 15, paragraph 2 of the [European] Convention on Human Rights of 4 November 1950 …, but also the order of values of the Basic Law of the Federal Republic of Germany, in particular Article 1, paragraph 1 of the Basic Law, can also be referred to. It is legally irrelevant in this context that the principles of humanity noted above, expressed in norms, were codified only after the violation in the concrete case in question was committed. The principles of humanity were and are valid independent of any recognition or codification by a state … By their nature they remained binding also during the regime of national socialism … and could be recognized through the voice of the conscience. Apart from that, the principles of humanity were partly codified also before 1945. The Hague Regulations … provided that no warring party is free in the choice of means of injuring the enemy (Article 22). Section 47 of the Military Criminal Code in the versions published on 16 June 1926 and 16 October 1940 provided: Not every order justifies the person executing it, at least not if the order involves a civilian or military crime … The legal consequence of withdrawal of benefits because of violations of the principles of humanity is – also due to the possible reference to pre-constitutional law – no violation of the principle “nulla poena sine lege, nullum crimen sine lege” … Section 1 a of the Federal War Victims Relief Act is not a criminal law norm. The provision rather contains an ethical accusation by the State; Article 103, paragraph 2 of the Basic Law, which regulates criminalization, does not apply …
(2) It can be objectively proven that the applicant has committed such a violation against the principles of humanity during the regime of national socialism (a). This violation is also attributable and reproachable to him (b). The withdrawal of benefits according to Section 1 a, paragraph 2 of the Federal War Victims Relief Act is only justified if in the concrete individual case a violation against the principles noted is objectively and subjectively proven, i.e. if the individual culpability can be established … The fact – given here – of voluntary SS membership alone does not suffice to assume such a violation … In a case of voluntary SS membership it shall, according to the compromise found in Parliament, rather be examined especially intensively whether an entitled person has violated the principles of humanity or rule of law by his individual behaviour (comp. Section 1 a, paragraph 1, sentence 2 of the Federal War Victims Relief Act). In consequence, a concrete, spatially and temporally defined behaviour must be proven, which is individually-personally attributable and reproachable, culpable … For this it is sufficient, however, if the illegality of his acts would at least have needed to become obvious to the perpetrator through an application of his conscience which could be reasonably expected from him … The refusal or withdrawal of benefits is not a criminal law sanction but an ethical accusation of the State reflected in the benefits law … It therefore neither requires a form of specific criminal law participation nor criminalization of the crime or offence. Decisive is rather whether the entitled person was involved in an inhumane act or an act against human dignity, whether he contributed – through his own acts – to its completion …
(a) The act of which the applicant is accused here contains a crass violation against the principles of humanity, sufficiently definable in space and time. It is to be regarded as proven that the applicant as a voluntary member of the Waffen-SS, carrying out an order of a superior, in a part of Poland earlier under Russian occupation, in late summer/early autumn 1941, together with other soldiers shot unarmed civilian persons – men, women and children –, who, with their backs to the shooters, stood at a pit dug before, and whom he had, with other fellow soldiers, already taken from their houses and rounded up on the market square of their town …
(b) In this objectively established violation of the principles of humanity the applicant was not justified by an order. The violation is also personally attributable and reproachable to him … It is true, according to the findings of the Higher Social Court the applicant here indeed acted on an order; this circumstance, however, does not justify his behaviour. The act ordered was not lawful; the shooting … was – as already clear from the way it was carried out – an obvious violation of the principles of humanity. Such behaviour also cannot be justified on the basis that it complied with national socialist ideology or formal national socialist law or had been exempt from prosecution at the time: time-related ideologies can neither exclude unlawfulness nor guilt. Acts committed on such a basis are reproachable and attributable if these sources demanded murder, displacement and violent acts or tried to justify them … Also as regards the subjective side, the acts of the [applicant] must retrospectively be measured by standards different from those common under the national socialist dictatorship … [It is not to be criticized] if the Higher Social Court finds that the applicant, by participating in the shooting of civilian persons in the summer of 1941, carried out an unlawful order in a reproachable, i.e. culpable, way. Contrary to the applicant’s view this finding does not require his prior conviction under criminal law. In a tiered system, the legal order knows numerous sanctions of differing intensity with which it can respond to behaviour hostile to the law or damaging to society. The provision on unworthiness in Section 1 a of the Federal War Victims Relief Act is embedded in this system of sanctions outside criminal law. The act violating the values of the principles of humanity and rule of law is to be assessed without regard to their criminalization as a crime or offence …
Nevertheless, it must be possible to individually blame the person in question for the act, as already apparent from the wording of Section 1 a, paragraph 1, sentence 2 of the Federal War Victims Relief Act. A personally culpable behaviour must be proven. Such an act is given whenever the person in question knew the facts which make his behaviour inhumane or contrary to the rule of law, if he was either aware that the behaviour was inhumane or contrary to the rule of law or would have needed to be aware of it when testing his conscience in the way that could reasonably be expected from him, and if there are no special grounds excluding culpability … Without legal fault, the Higher Social Court has found these characteristics here.
Insofar as the applicant opposes the accusation of culpability with the argument he had carried out an – albeit unlawful – order, this cannot excuse his acts. A criminal law accusation of guilt may not be required here. However, it does not cause effective legal concerns that the Higher Social Court has nevertheless examined the existence of a ground excluding guilt in the criminal law sense – here necessity due to superior orders (comp. Sections 32, 34 Criminal Code, Section 47 Military Criminal Code) – , which the applicant himself has raised in his favour. The principle of unity of the legal order needs to be taken into account here. Grounds which exclude unlawfulness of an act under criminal law, may not necessarily be decisive also in other areas of law … But special permissive rules, of criminal law origin, are valid also in these areas, because insofar an act cannot be permitted and prohibited at the same time … It is, however, always required that the prohibition in question, to which the permissive rule relates, is one and the same for the various sub-areas of the law. This is the case here, since an earlier behaviour cannot be reproachable according to Section 1 a of the Federal War Victims Relief Act if, assessed today under criminal law, guilt would be excluded …
The Senate leaves undecided whether a binding order, obviously unlawful because violating the principles of humanity, is dogmatically to be regarded as a justifying ground, excluding unlawfulness, … or as a ground excluding guilt … In any case, the applicant cannot free himself from the objectively committed and attributable violation by stating he had “only” carried out an order, and objectively had not had or subjectively had not seen a possibility not to carry it out. Objectively, according to the findings of the Higher Social Court – not attacked by the applicant with admissible objections, and based on the opinion of the expert witness – there was no situation of duress due to superior orders. Accordingly, the applicant would have had the possibility to refuse the order without direct danger for life or limb … It may be possible that the applicant was not aware of this or that he believed the refusal of an order brought with it a considerable danger for his own life. Insofar, he might have been in an error regarding the existence of a situation of duress (comp. Section 35, paragraph  of the Criminal Code). But also then there is – in view of an unlawful order – first of all an obligation to do everything that can be reasonably expected to avoid one’s own unlawful behaviour. Ultimately, the reason for committing the unlawful act must be that there is no way out of the situation … It is reasonably expected from the person in question to try to prevent the execution of the order, inhumane or contrary to the rule of law, or at least to keep himself out of the matter … In view of the particular reprehensibility and monstrosity of the action ordered, the applicant, as subordinate, if testing his conscience in the way reasonably to be expected from him, would have needed to realize that the execution of this order could never be lawful, that he at least needed to try to withdraw from its implementation. This applies independently from the level of education, from age or class, since the way these shootings were carried out had to form in any human being the conviction of the reprehensibility of the act … A person, however, who follows the order to such an inhumane act in blind obedience must be accused of having “blindly” followed orders, that is, without having tested his conscience … In such a case, also duress due to orders does not exclude the reproachability of the act, at least not if a perpetrator has not reflected on the point that the shooting of civilian persons in that form is an act morally to be condemned. It is this idea, to be allowed to destroy a human life arbitrarily, only because it was ordered, which speaks of the reprehensibility and therefore of the reproachability of the participation in such an act.
In 2006, in the Service in a Concentration Camp and Superior Orders case, Germany’s Federal Social Court held:
13. The applicant’s appeal on points of law [Revision] is founded to the extent that the case is remanded to the Higher Social Court. Like the respondent and the lower instance courts, the Senate regards the applicant’s service as guard in the Auschwitz concentration camp as a continuous violation of the principles of humanity. The factual findings of the Higher Social Court are however not sufficient to exclude that the applicant was in a situation of duress due to superior orders.
23. The applicant’s behaviour in context with the violation of the principles of humanity, found above, was not justified by an order. The applicant may have acted upon orders as regards both the general service as guard and the “ramp service”. But this does not justify his behaviour, because the acts ordered were not lawful. General service as guard and “ramp service” obviously were, as work-sharing contributions to the destruction of human beings through forced labour and killing, a most grave wrong (comp. in this respect the exculpating ground “Acting upon order or instruction” regulated in Section 3 of the International Crimes Code).
24. On the basis of the findings of the Higher Social Court it cannot be conclusively decided whether the applicant is to be individually accused of this violation.
25. As the Senate explained in the leading judgement of 24 November 2005 [Federal Social Court, Judgement of 24 November 2005, B 9a/9 V 8/03 R, “Executions and superior orders”], establishing the subjective side of a violation of the principles of humanity does not require guilt in the criminal law sense. In a tiered system, the legal order knows numerous sanctions of differing intensity with which it can respond to behaviour hostile to the law or damaging to society. The provision on unworthiness in Section 1 a of the Federal War Victims Relief Act is embedded in this system of sanctions outside criminal law. The act violating the values of the principles of humanity is to be assessed without regard to their criminalization as crime or offence. Nevertheless, it must be possible individually to accuse the person in question of the act, as already apparent from the wording of Section 1 a, paragraph 1, sentence 2 of the Federal War Victims Relief Act. A personally culpable behaviour must be proven. Such an act is given whenever the person in question knew the facts which make his behaviour inhumane or contrary to the rule of law, if he was either aware that the behaviour was inhumane or contrary to the rule of law or would have needed to be aware of it when testing his conscience in the way that could reasonably be expected from him, and if there are no special grounds excluding culpability (comp. the Senate’s judgement [of 24 November 2005]). Except for the final one, the Higher Social Court has found these characteristics here, without legal fault.
26. According to the findings of the Higher Social Court, binding on the Senate …, the applicant knew that with his service as guard and his “ramp service” he contributed to the holding of detainees without legal ground, to detainees being made to do forced labour, and to the killing of detainees in large numbers.
27. Insofar as the applicant basically invokes “duress due to superior orders” (comp. in this context Section 35 of the Criminal Code), it is especially important whether he carried out the guard service out of fear for his life and limb and whether he did his utmost to evade the service ordered. Even in view of the monstrosity of the procedures in which he participated in Auschwitz it could in principle not reasonably be expected from him to give up his life. Rather, the gravity of the act is the standard against which the requirements to be asked of the applicant’s attempts to find a way out must be measured …
28. The belief, alleged by the applicant, that he would be executed if he refused to obey his orders, or that he would be taken to the SS penal camp Matzkau, can on its own not exculpate him. Even if open refusal to obey orders had been punished in the way he feared, he would have needed to do everything that could be reasonably expected from him to evade carrying out unlawful acts ordered. Only a situation from which there is no way out (actual or unavoidably erroneously assumed) could be exculpating. The Senate is not able to decide conclusively whether the applicant was in such a situation.
In 2010, in the Boere case, Germany’s Regional Court of Aachen found Heinrich Boere, a German national, guilty of murder because he shot three Dutch nationals in 1941 during the German occupation of the Netherlands. The Court summarized the facts of the case as follows:
[A]t the beginning of the war between Germany and the Netherlands, the accused joined the Waffen-SS
[Armed SS] and was a member of the Feldmeijer commando of the Germanic SS in the Netherlands when the crime was committed. … Together with other members of the Feldmeijer commando, the accused was tasked with the killing of [the three Dutch nationals] Fritz Hubert Ernst Bi., Teunis de G. and Frans Willem Ku. In the view of the accused, the killing of the pharmacist Bi. was an act of revenge and the individuals G. and Ku. were members of the resistance movement against whom countermeasures had to be taken because of a previous attack [against the German occupying forces].
The Court held:
The fact that the accused carried out orders does not stop his conviction [of murder].
Even if one considers that § 47 of the Military Criminal Code, as it stood at the time, was applicable to members of the commando Feldmeijer, § 47 para. 1 sentence 2 of the Military Criminal Code does not exempt the killings carried out by the accused from individual criminal responsibility.
According to this provision [of the Military Criminal Code], a subordinate carrying out an order can only be punished if he went beyond the order received in his official acts or if he was aware that his superior’s orders concerned an act whose objective was a general or military crime or misconduct.
However, it must be considered that the accused, contrary to his statement, knew during the insidious, arbitrary, abject, and cowardly killings of the victims that killing innocent civilians was unlawful and that he recognized the criminal character of the orders to carry out the killings. …
The facts as established by this Chamber do not include any clear indications that if the accused had not carried out the orders to shoot the victims, he would have had to fear for his life or would have experienced other serious disadvantages because of a refusal to carry out a superior order. The acts in question were thus not committed in fulfilment of the conditions for a state of emergency that would justify or excuse the commission of the crimes.
In 2010, in the Italian Partisans case, Germany’s Federal Court of Justice was called upon to decide a case concerning the killing of nine Italian civilians in Tuscany in June 1944 by German troops. The Court summarized the facts of the case as follows:
… Two [German] soldiers, whom the accused had tasked with obtaining transport vehicles [as part of a mission to repair a bridge], were killed by partisans in an ambush. A third [German] soldier was injured. Since the partisans had absconded after the attack, the accused, motivated by rage and revenge, decided to take retaliatory measures against the male civilian population of the area. First, he reported the incident to the battalion commander and suggested to take action against the Italian civilians which he had already planned. Agreeing with the accused’s proposal, the battalion commander ordered the [retaliatory] measure and additionally provided logistic supported by making available an antiaircraft gun and explosives. The next day, the accused ordered the arrest of all male civilians in the area. In the end, the detainees comprised a group of nine men, the oldest of whom was 67 years old and which included two adolescents who were 15 and 16 years of age. None of them had participated in the attack or was suspected of supporting the partisans. They were locked into a house.
Although some detainees were afraid of being shot, others assumed that they would stay alive but would be deported to a concentration camp in Germany in order to work there. Soon, however, the house was destroyed by explosion. Subsequently, and also pursuant to the accused’s order, machine guns were fired at the debris in order to kill any surviving victims. In the end, only the fifteen-year-old survived with severe injuries. …
On this basis, the accused was convicted on ten counts of murder and attempted murder and sentenced to life imprisonment.
The Court held: “The criminal chamber [of the lower court] rightly considered the killings of the Italian civilians ordered by the accused as murder.”
The Court further held:
The present crime is not only based on the order by a superior but also corresponded to the accused’s plan to take revenge against the Italian civilian population, which he had already made prior to being given the order. It was solely for this reason that the accused proposed to the battalion commander to give the corresponding order. A person who has such a plan and who instigates the superior to lend his approval to the plan in the form of an order cannot be considered as having had to obey an order. This situation lacks the obligation to obey an order which would put the subordinate in a situation of conflict similar to a situation of necessity [that would relieve the subordinate from criminal responsibility].