Refusing an order - (Befehlsnotstand - Necessity to obey orders)

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George L Gregory
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Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by George L Gregory » 08 Mar 2021 17:50

Hi,

The plea in court of a "superior order" or in German "Befehl ist Befehl" ("an order is an order") was used extensively during the Nuremberg Trials to the point that it's also alternatively known as the "Nuremberg defense".

Is there any actual evidence of a German (Nazi or non-Nazi) during the Third Reich to have been severely punished for refusing to carry out an order?

GregSingh
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by GregSingh » 20 Apr 2021 12:44

Hans Graf von Sponeck

According to Thomas Geldmacher "between 1939 and 1945 the National Socialist military justice imposed at least 30,000 death sentences against members of the Wehrmacht alone, the enforcement rate was around 70 percent".
Not sure what percentage of these was order refusal, it seems mostly it was a desertion.

Try Fritz Wüllner's works.
If we become increasingly humble about how little we know, we may be more eager to search.

andrek
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by andrek » 21 Apr 2021 07:18

According to the appraisers in the German lawsuits against the so-called "Nazi-Opas" there was no such thing. Read the judgments.

According to the appraisers (german historians, historians according to german standards), everyone could have refused "Befehle" or contradicted the transfer to a KZ without being punished. In The Case of Gröning and Demjanjuk, the appraiser claimed, there has never been a single soldier/guard, who has been punished for command refusal.

Again, read the judgements and yes, that refers exclusively to the KZs Auschwitz (Gröning) and maybe Majdanek/Sobibor/Flossenbürg (Demjanjuk). The court ruling against Gröning is final. In the case of Demjanjuk not. And notice, insults or special services are not punishments. The german court asked for a military court judgment and that does not exist. Therefore, everyone could refuse a command. Thus the conclusion is very simple.

gebhk
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by gebhk » 21 Apr 2021 19:20

Sorry Andrek, but

1) If everyone has the right to refuse and order, then it is no longer an order but a suggestion.
2) I'm sorry but I cannot for one second believe that the German armed forces and paramilitaries did not issue orders.

On a more serious note, a related question is what was the position of a German soldier issued an order that was clearly illegal. For example the 1939 soldbuch was very clear about what German military law expected of him in relation to treatment of POWs and enemy non-combatants. What was he expected (legally) to do if, for example, ordered by his superior to murder POWs (the Ciepielow murders a particularly notorious case springs to mind)?

Corax
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by Corax » 24 Apr 2021 22:39

I remember reading about an incident in the occupied Netherlands right on the verge of liberation where a group of German soldiers were ordered to execute a group of Dutch men and women, I don't recall if the Dutch were in the resistance or if they were just rounded up to be executed in a reprisal action. In any case one of the German soldiers refused because the invading Allies were very close and to him it was senseless to execute them. The soldier was shot by his officer on the spot. I believe the Dutch comemorates his brave refusal with an inscription

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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by AliasDavid » 25 Apr 2021 08:31

Hello,
gebhk wrote:
21 Apr 2021 19:20
...
1) If everyone has the right to refuse and order, then it is no longer an order but a suggestion.
...
47 Abs. 1 Nr. 2 Militärstrafgesetzbuch was asking a soldier to disobey a criminal order. It would have been up to the military court to decide whether the order was really criminal.

UlrichH

gebhk
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by gebhk » 25 Apr 2021 13:50

Thanks Alias David. That makes sense.

Does the Militärstrafgesetzbuch make provision for officers dispensing summary justice in the field? In the sense of the example quoted by Corax?

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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by AliasDavid » 25 Apr 2021 14:39

gebhk wrote:
25 Apr 2021 13:50
...
Does the Militärstrafgesetzbuch make provision for officers dispensing summary justice in the field? In the sense of the example quoted by Corax?
Giving an order that violates penal law is covered by §47 Abs. 1 (see https://www.servat.unibe.ch/dns/RGBl_19 ... tzbuch.pdf).

UlrichH
Last edited by AliasDavid on 25 Apr 2021 21:15, edited 2 times in total.

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wm
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by wm » 25 Apr 2021 17:48

You couldn't refuse any order on the battlefield and you could be executed on the spot for that. Otherwise, you could (and suffer the consequences, if any, later.)
The Polish Army (so I suppose all the others armies of the Soviet Bloc) interpreted it in that way even years after the fall of communism.

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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by gebhk » 25 Apr 2021 22:53

Thanks Ulrich

I'll try to work it out, but may need some help with translation if I fail!

WM - the problem in war is, of course, defining where the 'battlefield' starts and ends...

andrek
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by andrek » 26 Apr 2021 10:02

That makes no sense to me. Do not confuse Hollywood movies with the German military alignability 1939-1945:
gebhk wrote:
21 Apr 2021 19:20
Sorry Andrek, but

1) If everyone has the right to refuse and order, then it is no longer an order but a suggestion.
2) I'm sorry but I cannot for one second believe that the German armed forces and paramilitaries did not issue orders.
In the case of Gröning, it increased his penalty that he did not deny commands.

As far as I know, in reality only the so called "Führer" of Dirlewanger's criminal horde shoot a subordinate on the spot, maybe without reason. Maybe the corrupt SS-Führer Fegelein and other war criminals did it. But this was not allowed. Likewise, neither Guderian, Rommel or a Dönitz could shoot a command refuser on the spot, not even with the help of a Militärgericht, not even subsequently allowed. The toleration of offenses is something else and was/is a crime itself.

If you want to read more on this subject, read the files of the SS-judge Konrad Morgen. He has written alot of stuff about the Waffen-SS and "Befehlverweigerung", basicly KZ's and SS in general. In his documents you can read all the paragraphs and the procedures needed to hunt the "Befehlsverweigerer" down. Waffen-SS, Wehrmacht, Kriegsmarine or Luftwaffe, the procedures are more or less identical. It looks very easy, but it wasn't. In the early years of the war the so called "Fliegendes Standgericht" were very rare. Later in 1945 they became more standard. If you want to know more about "Fliegende Standgerichte" read the files of the Militärrichter der Kriegsmarine Hans Filbinger. His judgments are well documented and publicly available. In the years 1943 to 1945 - as far as i remember - he spoke no death sentence because of "Befehlsverweigerung".

gebhk
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by gebhk » 26 Apr 2021 12:45

Following the abortive mutiny of part of the 13th SS Division in Villefranche in 1943, a large number of men in the division were ordered to redeploy to the Todt organisation. Those who refused this order were carted off to the Neuengamme concentration camp, where many of them died according to Lepre.

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wm
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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by wm » 26 Apr 2021 22:07

I don't remember any details but I think you were supposed to indicate that it was "combat order(?)" and you had no choice but to obey - so there was no need to define what battlefield was.

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Re: Refusing an order - (Befehlsnotstand - Necessity to obey orders)

Post by David Thompson » 27 Apr 2021 19:04

For interested readers -- See also "The Defense of Superior Orders," at
viewtopic.php?f=6&t=126214

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