General Devastation (Germany) Case

Date21 Marzo 1947
Docket NumberCase No. 124
CourtRegional Court (Germany)
Germany, Oberlandesgericht of Dresden.
Case No. 124
General Devastation (Germany) Case.

Laws of War — Enforcement of — Defence of Superior Orders — Sphere of Applicability.

Laws of War — Enforcement of — War Crimes — Crimes — Devastation Not Justified by Military Necessity.

War — In General — Right of War — Consequences of Unlawful Character of War — Laws of War — Enforcement of — War Crimes — Devastation not Justified by Military Necessity — Defence of Superior Orders — Sphere of Applicability.

The Facts.—In April 1945 the accused, in the course of his official duties, circulated to various mills an order to the effect that, on the approach of the Red Army, valuable machinery should either be removed or destroyed. A mill in N. was destroyed by fire, but the fire was apparently due to the hostilities, and was not the result of the order transmitted by the accused. The accused was now charged with being an accessory to arson—an act punishable, according to par. 49 (a), clause 3, of the German Penal Code, even if the principal offence was not consummated. It was contended on behalf of the accused that he was merely giving effect to the orders of a higher authority. The Court was called upon to decide whether, in view of the illegal character of the war, these orders were a valid defence.

Held: that the illegal character of the war did not make every act of violence committed in furtherance thereof unlawful, nor did it exclude all reliance on superior orders. The Court said:

“According to positive law then in force, which was enacted for a state of war, the participation of the accused in the execution of directions given by the Reichskommissar for Defence in furtherance of the war effort was not punishable. … It does not necessarily follow from the fact that the Nazi war as such must be regarded as criminal that the positive laws enacted for the state of war cannot serve as a defence in the case of acts which, like homicide and arson, are in themselves punishable, but were formerly not criminal in the course of hostilities. If the reverse were true...

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