''Befehlsnotstand'' (English:
Necessity
Necessary or necessity may refer to:
* Need
** An action somebody may feel they must do
** An important task or essential thing to do at a particular time or by a particular moment
* Necessary and sufficient condition, in logic, something that is ...
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.
The concept of ''Befehlsnotstand'' was successfully used as a defense in World War II-related war crimes trials in Germany in the 1950s and 1960s
but research into the subject since has proven that ''Befehlsnotstand'' as such did not exist, meaning German soldiers of the
Wehrmacht
The ''Wehrmacht'' (, ) were the unified armed forces of Nazi Germany from 1935 to 1945. It consisted of the ''Heer'' (army), the ''Kriegsmarine'' (navy) and the ''Luftwaffe'' (air force). The designation "''Wehrmacht''" replaced the previous ...
or ''
Schutzstaffel
The ''Schutzstaffel'' (SS; also stylized as ''ᛋᛋ'' with Armanen runes; ; "Protection Squadron") was a major paramilitary organization under Adolf Hitler and the Nazi Party in Nazi Germany, and later throughout German-occupied Europe d ...
'' did not actually face drastic consequences if refusing such an order during the war.
Refusing a lawful order did however result in consequences, with 23,000 German soldiers executed for refusing orders.
Etymology
''Befehlsnotstand'' is a
compound word
In linguistics, a compound is a lexeme (less precisely, a word or sign) that consists of more than one stem. Compounding, composition or nominal composition is the process of word formation that creates compound lexemes. Compounding occurs when ...
, made up of 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", "a compulsion to obey orders"
or "crisis created as a result of following orders".
''Notstand'' in German law can be compared to
necessity
Necessary or necessity may refer to:
* Need
** An action somebody may feel they must do
** An important task or essential thing to do at a particular time or by a particular moment
* Necessary and sufficient condition, in logic, something that is ...
in the criminal law of other nations.
Germany
Background
In German law, the situation ''Befehlsnotstand'' arises when a person refusing to carry out an unlawful order faces drastic consequences for the refusal. In such a situation, the person could not be prosecuted for carrying out the order.
Drastic consequences, in
German military law
German(s) may refer to:
* Germany (of or related to)
** Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
**Ge ...
, are defined as a danger to life or body, and are not defined as loss of rank, incarceration or removal to a
penal unit
Penal military units, including penal battalions, penal companies, etc., are military formations consisting of convicts mobilized for military service. Such formations may contain soldiers convicted of offenses under military law, persons enrolled ...
, such as a ''
Strafbataillon
''Strafbataillon'' (English: "penal battalion") is the generic term for penal units that were created from prisoners during the Second World War in all branches of the ''Wehrmacht''. Soldiers, criminals and civilians sentenced to those units wer ...
''.
Nazi Germany
The term is commonly, but not exclusively, associated with German war crimes and the
Holocaust
The Holocaust, also known as the Shoah, was the genocide of European Jews during World War II. Between 1941 and 1945, Nazi Germany and its collaborators systematically murdered some six million Jews across German-occupied Europe; a ...
during
World War II
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, following which ''Befehlsnotstand'' was used as line of defense by the accused in post-war trials. In the 1950s and 1960s the use of ''Befehlsnotstand'' as a defense in war crimes trials in Germany was quite successful as it generally protected the accused from punishment. With the formation of the
, this changed after historical research by the organisation regarding ''Einsatzgruppen'' of the ''
Sicherheitsdienst
' (, ''Security Service''), full title ' (Security Service of the ''Reichsführer-SS''), or SD, was the intelligence agency of the SS and the Nazi Party in Nazi Germany. Established in 1931, the SD was the first Nazi intelligence organization ...
'' or concentration camp personnel revealed that no known case could be cited where refusing an order did indeed result in severe punishment. More commonly, military personnel refusing such an order were transferred to a different unit.
An example for this was Wehrmacht Captain Otto Freyer, who was transferred towards the end of the war to the
Neuengamme concentration camp
Neuengamme was a network of Nazi concentration camps in Northern Germany that consisted of the main camp, Neuengamme, and more than 85 satellite camps. Established in 1938 near the village of Neuengamme in the Bergedorf district of Hamburg, th ...
. Freyer was deemed too soft for his role, which included supervision of executions and commanding a sub-camp at
Kaltenkirchen
(nicknamed ''Kaki''; nds, Koldenkarken or ''Kolenkarken'') is a town located 35 km north of Hamburg in Germany. It is part of the Segeberg district, in Schleswig-Holstein. It has about 20,000 inhabitants.
History
First mentioned in the 1 ...
, and he was eventually transferred again at his own request.
In practice, refusing a
superior order to participate in war crimes by German soldiers almost never led to dire consequences for the refusing person, and punishment, if any, was relatively mild. It usually resulted in degradation and being sent to serve with fighting units at the front.
German historian
Sven Felix Kellerhoff
Sven Felix Kellerhoff (born 1971) is a German historian, journalist and author who specialises in the history of the Nazi era.
Education and career
Kellerhoff was born in 1971 in Stuttgart, Germany. He was educated at the Free University of Berli ...
argued that, instead of fear of punishment the participants were more afraid of peer pressure and the possibility of exclusion from their group.
Kellerhoff further argued that the situation of ''Einsatzgruppen'' members taking part in massacres did not even constitute the lesser ''Putativnotstand'',
a state where the individual mistakenly believes their life is in danger if the order is disobeyed when, in reality, no such danger exists.
Manfred Oldenburg, in his book ''Ideology and Military Calculation'', stated that there are no known cases where the refusal to participate in an execution of civilians has led to drastic consequences for soldiers of the Wehrmacht or SS. German soldiers did however face drastic consequences if refusing legal orders during the war.
One and a half million German soldiers were sentenced to imprisonment for refusing to follow an order and 30,000 were sentenced to death, of whom 23,000 were executed.
[Norbert Haase: Wehrmachtangehörige vor dem Kriegsgericht. In: R.D. Müller, H.E. Volkmann (Hrsg. im Auftrag des MGFA): Die Wehrmacht: Mythos und Realität. Oldenbourg, München 1999, , page 481]
East Germany
''Befehlsnotstand'' was also used, as well as the
Nuremberg defense
Superior orders, also known as the Nuremberg defense or just following orders, is a plea in a court of law that a person, whether a member of the military, law enforcement, a firefighting force, or the civilian population, should not be considered ...
, by former East German border guards, tried after the
German reunification
German reunification (german: link=no, Deutsche Wiedervereinigung) was the process of re-establishing Germany as a united and fully sovereign state, which took place between 2 May 1989 and 15 March 1991. The day of 3 October 1990 when the Ge ...
in the ', the trials of East German borders guards accused of unlawful killings of escapees at the
Berlin Wall
The Berlin Wall (german: Berliner Mauer, ) was a guarded concrete barrier that encircled West Berlin from 1961 to 1989, separating it from East Berlin and East Germany (GDR). Construction of the Berlin Wall was commenced by the government ...
and the
Inner German border
The inner German border (german: Innerdeutsche Grenze or ; initially also ) was the border between the German Democratic Republic (GDR, East Germany) and the Federal Republic of Germany (FRG, West Germany) from 1949 to 1990. Not including the ...
as part of the ''
Schießbefehl
(; German for "order to fire") was the term in the German Democratic Republic (East Germany) for standing orders authorizing the use of lethal force by the Border Troops to prevent (defection) at the Inner German border from 1960 to 1989 ...
''. In an interview with journalist
John O. Koehler, former
Stasi
The Ministry for State Security, commonly known as the (),An abbreviation of . was the Intelligence agency, state security service of the East Germany from 1950 to 1990.
The Stasi's function was similar to the KGB, serving as a means of maint ...
political prisoner
A political prisoner is someone imprisoned for their political activity. The political offense is not always the official reason for the prisoner's detention.
There is no internationally recognized legal definition of the concept, although n ...
Werner Juretzko commented resignedly about the leniency the post-1989 German legal system has shown to East Germans guilty of
crimes against humanity
Crimes against humanity are widespread or systemic acts committed by or on behalf of a ''de facto'' authority, usually a state, that grossly violate human rights. Unlike war crimes, crimes against humanity do not have to take place within the ...
, "I guess the Germans have lost their balls."
Current German law
In current German law, article
§ 34an
of the German penal code, the ''
Strafgesetzbuch
''Strafgesetzbuch'' (), abbreviated to ''StGB'', is the German penal code.
History
In Germany the ''Strafgesetzbuch'' goes back to the Penal Code of the German Empire passed in the year 1871 on May 15 in Reichstag which was largely identica ...
'', govern the law on ''Notstand''. Formerly it was governed by articles § 52 and 54.
Article 34 deals with ''Rechtfertigender Notstand'',
necessity
Necessary or necessity may refer to:
* Need
** An action somebody may feel they must do
** An important task or essential thing to do at a particular time or by a particular moment
* Necessary and sufficient condition, in logic, something that is ...
as justification, while article 35 deals with ''Entschuldigender Notstand'', necessity as excuse.
[van Sliedregt, 2012, Notes 162 & 163]
In other countries
Argentina
The
Law of Due Obedience ( es, 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.
See also
*
Corpse-like obedience (''Kadavergehorsam'')
* ''
Führerprinzip
The (; German for 'leader principle') prescribed the fundamental basis of political authority in the Government of Nazi Germany. This principle can be most succinctly understood to mean that "the Führer's word is above all written law" and t ...
''
References
Bibliography
*
*
* {{Cite book, first=Elies , last=van Sliedregt, title=Individual Criminal Responsibility in International Law, url=https://books.google.com/books?id=8tBwql1Jdx4C&pg=PT522 , publisher=
Oxford University Press
Oxford University Press (OUP) is the university press of the University of Oxford. It is the largest university press in the world, and its printing history dates back to the 1480s. Having been officially granted the legal right to print books ...
, year=2012, isbn=978-0199560363
Further reading
Further reading
* Christopher Browning: Ordinary Men.
* Wolfram Wette: Zivilcourage. Empörte Helfer und Retter aus Wehrmacht, Polizei und SS. Fischer, 2004.
* Manfred Messerschmidt: Die Wehrmachtjustiz 1933-1945, 2005.
* Felix Römer: Kameraden. Die Wehrmacht von innen, 2012.
* Harald Welzer and Sönke Neitzel: Soldaten: On Fighting, Killing and Dying. The Secret World War II Transcripts of German POWs, 2012.
Military law
Nazi war crimes
German words and phrases
Criminal defenses
Law of Germany