TEXT C Moral responsibility is
all very well, but what about military orders Is it not the soldier’s duty to
give instant obedience to orders given by his military superiors And apart from
duty, will not the soldier suffer severe punishment, even death, if he refuses
to do what he is ordered to If, then, a soldier is told by his superior to burn
this house or to shoot that prisoner, how can he be held criminally accountable
on the ground’ that the burning or shooting was a violation of the laws of
war These are some of the questions that are raised by the
concept commonly called "superior orders", and its use as a defense in war
crimes trials. It is an issue that must be as old as the laws of war themselves,
and it emerged in legal guise over three centuries ago when, after the Stuart
restoration in 1660, the commander of the guards at the trial and execution of
Charles I was put on trial for treason and murder. The officer defended himself
on the ground "that all I did was as a soldier, by the command of my superior
officer whom I must obey or die," but the court gave him short shrift, saying
that "When the command is traitorous, then the obedience to that command is also
traitorous①." Though not precisely articulated, the
rule that is necessarily implied by this decision is that it is the soldier’s
duty to obey lawful orders, but that he may disobey—and indeed must, under some
circum stances-unlawful orders. Such has been the law of the United States since
the birth of the nation. In 1804, Chief Justice John Marshall declared that
superior orders would justify a subordinate’s conduct only "if not to perform a
prohibited act," and there are many other early decisions to the same
effect. A strikingly illustrative case occurred in the wake of
that conflict which most Englishmen have never heard ( although their troops
burned the White House) and which we call the War of 1812. Our country was
baldly split by that war too and, at a time when the United States Navy was not
especially popular in New England, the ship-in-the-line Independence was lying
in Boston Harbor. A passer-by directed abusive language at a marine standing
guard on the ship, and the marine, Bevans by name, ran his bayonet through the
man. Charged with murder, Bevans produced evidence that the marines on the
Independence had been ordered to bayonet anyone showing them disrespect. The
case was tried before Justice Joseph Story, next to Marshall, the leading
judicial figure of those years, who charged that any such order as Bevans had
invoked "would be illegal and void," and, if given and put into practice, both
the superior and the subordinate would be guilty of murder②. In
consequence, Bevans was convicted. The order allegedly given to
Bevans was pretty drastic, and Boston Harbor was not a battlefield; per haps it
was not too much to expect the marine to realize that literal compliance might
lead to bad trouble. But it is only too easy to conceive of circumstances where
the matter might not be at all clear. Does the sub ordinate obey at peril that
the order may later be ruled illegal, or is protected unless he has a good
reason to doubt its validity It can be concluded from the last paragraph that the author’s attitude towards Bevans was ______.