Befehlsnotstand: Difference between revisions
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The term has been translated into English by various sources as "necessity to obey order",<ref>{{cite book|author=Wolfgang Sofsky| url=https://books.google.com.au/books?id=ClmQ8PPjF44C&pg=PA334&lpg=PA334&dq=befehlsnotstand+necessity+to+obey+orders&source=bl&ots=PypN2kslp2&sig=vVE9IrgAvzRjV0cboCxIaKS5p7E&hl=en&sa=X&ved=2ahUKEwjYrvaqpp_eAhVL6Y8KHcG7B7YQ6AEwA3oECAcQAQ#v=onepage&q=befehlsnotstand%20necessity%20to%20obey%20orders&f=false |title=The Order of Terror: The Concentration Camp |page=334| publisher=|date=|language=|accessdate=23 October 2018}}</ref> "a compulsion to obey orders"<ref name="Translation" >{{cite web|url=https://en.langenscheidt.com/german-english/befehlsnotstand|title=Befehlsnotstand|publisher=[[Langenscheidt]]|date=|language=German|accessdate=17 October 2018}}</ref> or "crisis created as a result of following orders".{{sfn|Lewy|2017|p=108}} |
The term has been translated into English by various sources as "necessity to obey order",<ref>{{cite book|author=Wolfgang Sofsky| url=https://books.google.com.au/books?id=ClmQ8PPjF44C&pg=PA334&lpg=PA334&dq=befehlsnotstand+necessity+to+obey+orders&source=bl&ots=PypN2kslp2&sig=vVE9IrgAvzRjV0cboCxIaKS5p7E&hl=en&sa=X&ved=2ahUKEwjYrvaqpp_eAhVL6Y8KHcG7B7YQ6AEwA3oECAcQAQ#v=onepage&q=befehlsnotstand%20necessity%20to%20obey%20orders&f=false |title=The Order of Terror: The Concentration Camp |page=334| publisher=|date=|language=|accessdate=23 October 2018}}</ref> "a compulsion to obey orders"<ref name="Translation" >{{cite web|url=https://en.langenscheidt.com/german-english/befehlsnotstand|title=Befehlsnotstand|publisher=[[Langenscheidt]]|date=|language=German|accessdate=17 October 2018}}</ref> or "crisis created as a result of following orders".{{sfn|Lewy|2017|p=108}} |
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''Notstand'' in German law can |
''Notstand'' in German law can be compared to [[Necessity (criminal law)|necessity]]<ref name="Sliedregt" /> in the criminal law of other nations.<ref>{{cite web|url=https://definitions.uslegal.com/n/necessity/|title=Necessity Law and Legal Definition|publisher=www.uslegal.com|date=|language=|accessdate=18 October 2018}}</ref> |
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==Germany== |
==Germany== |
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Revision as of 07:25, 25 October 2018
Befehlsnotstand (English: Necessity to obey orders) is a German legal term that refers to a situation in which a certain action is ordered that violates law, but where the refusal to carry out such an order would lead to drastic consequences, specifically danger to life or body, for the person refusing to carry out the order.[1]
The concept of Befehlsnotstand was successfully used as a defence in World War II-related war crimes trials in Germany in the 1950s and 1960s[2] but research into the subject since has proven that Befehlsnotstand as such did not exist, meaning German soldiers did not actually face drastic consequences if refusing such an order during the war.[3]
Etymology
Befehlsnotstand is a compound word, made up of the the German words Befehl (command or order) and Notstand (emergency).
The term has been translated into English by various sources as "necessity to obey order",[4] "a compulsion to obey orders"[5] or "crisis created as a result of following orders".[6]
Notstand in German law can be compared to necessity[7] in the criminal law of other nations.[8]
Germany
Background
In German law, the situation Befehlsnotstand arises when a person refusing to carry out an unlawful order would have to face drastic consequences. In this situation, the person could not be prosecuted for carrying out the order.[2] Drastic consequences, in German law, are defined as a danger to life or body, and are not defined as loss of rank, incarceration or removal to a penal unit, like a Strafbataillon.[9]
Nazi Germany
The term is commonly, but not exclusively, associated with German war crimes and the Holocaust during World War II where Befehlsnotstand was used as line of defence by the accused in subsequent post-war trials. In the 1950s and 1960s the use of Befehlsnotstand as a defence in war crimes trials in Germany was quite successful as it generally protected the accused from punishment. With the formation of the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes this changed as a historical research by the organisation revealed that no known case could be established where refusing an unlawful order did result in severe punishment. More commonly, military personnel refusing such an order were transferred to a different unit.[2] An example for this was Wehrmacht Captain Otto Freyer who was transferred towards the end of the war to the Neuengamme concentration camp. Freyer was deemed too soft for his role, which included supervision of executions and commanding a sub-camp at Kaltenkirchen and was eventually transferred again at his own request.[10]
In practice, refusing a superior order to participate in war crimes by German soldiers of the Wehrmacht or Waffen-SS almost never led to consequences for the refusing person, and punishment, if any, was very mild.[11] German historian Sven Felix Kellerhoff argued that, instead of fear of punishment the participants were more afraid of peer pressure and the possibility of exclusion from their group.[3]
Kellerhoff further argued that the situation of German soldiers taking part in massacres did not even constitute the lesser Putativnotstand,[3] a state where the individual mistakenly believes their life is in danger if the disobeyed when, in reality, no such danger exists.[12]
East Germany
Befehlsnotstand was also used as a defence by former East German border guards, tried after the German reunification in the Mauerschützenprozesse, the trials of East German borders guards accused of unlawful killings of escapees at the Berlin Wall and the Inner German border as part of the Schießbefehl.[13]
Current German law
In current German law, articles § 34 and § 35 of the German penal code, the Strafgesetzbuch, govern the law on Notstand. Formerly it was governed by articles § 52 and 54.[6]
Article 34 deals with Rechtfertigender Notstand, necessity as justification, while article 35 deals with Entschuldigender Notstand, necessity as excuse.[7]
In other countries
Argentina
The Law of Due Obedience (Spanish: Ley de obediencia debida), a law passed by the National Congress of Argentina after the end of the military dictatorship, translated in German as the Befehlsnotstandsgesetz (Gesetz meaning law in German), protected all officers and their subordinates of the armed forces and security forces from prosecution for most crimes committed during the dictatorship but was eventually annulled in 2005.[14]
References
- ^ "Befehlsnotstand" (in German). www.rechtslexikon.net. Retrieved 17 October 2018.
- ^ a b c Kellerhoff, Sven Felix (15 July 2015). "Hatten SS-Mitglieder damals wirklich „keine Wahl"?" [Did SS members really have no choice?]. Die Welt (in German). Retrieved 17 October 2018.
- ^ a b c Kellerhoff, Sven Felix (14 January 2014). "Warum junge Männer im Akkord morden" [Why young men murdered ceaselessly]. Die Welt (in German). Retrieved 17 October 2018.
- ^ Wolfgang Sofsky. The Order of Terror: The Concentration Camp. p. 334. Retrieved 23 October 2018.
- ^ "Befehlsnotstand" (in German). Langenscheidt. Retrieved 17 October 2018.
- ^ a b Lewy 2017, p. 108.
- ^ a b van Sliedregt, 2012, Notes 162 & 163
- ^ "Necessity Law and Legal Definition". www.uslegal.com. Retrieved 18 October 2018.
- ^ "NS-Verbrechen, totalitäre Herrschaft und individuelle Verantwortlichkeit: Das Problem des sog. Befehlsnotstandes" [Nazi crimes, totalitarian regime and individual responsibility: The problem of the so called Befehlsnotstand] (PDF) (in German). German Federal Archives. Retrieved 17 October 2018.
- ^ "Befehlsnotstand nur eine Legende?" [Befehlsnotstand just a legend?]. Hamburger Abendblatt (in German). 17 August 2000. Retrieved 17 October 2018.
- ^ Bruners, Jan. "Strafverfolgung von NS-Verbrechen" [Criminal prosecution of Nazi crimes] (PDF) (in German). Universität Köln. Retrieved 17 October 2018.
- ^ "Putativnotstand" (in German). www.rechtslexikon.net. Retrieved 18 October 2018.
- ^ "Wer trägt die Schuld? - Schießbefehl und Mauertote" [Who is guilty? - Order to shoot and wall dead] (in German). Bundeszentrale für politische Bildung. 30 September 2005. Retrieved 17 October 2018.
- ^ "Vergangenheitspolitik in Chile, Argentinien und Uruguay" [Political history in Chile, Argentina and Uruguay] (in German). Bundeszentrale für politische Bildung. 9 October 2006. Retrieved 18 October 2018.
Bibliography
- Lewy, Guenter (2017). Perpetrators: The World of the Holocaust Killers. Oxford University Press. ISBN 978-0190661137.
{{cite book}}: Invalid|ref=harv(help) - van Sliedregt, Elies (2012). Individual Criminal Responsibility in International Law. Oxford University Press. ISBN 978-0199560363.