“I Was Following Orders”: An Ancient Greek Archetype of Modern War Crime Legislation

This essay is based on a paper originally presented at ISSEI’s 15th International Conference, “What’s New in the New Europe?”, The University of Lodz, Poland, July 11–15, 2016.

Abstract

This article discusses Lysias’ Against Eratosthenes as an ancient Athenian instance of the superior orders plea, a line of defence made notorious during the Nuremberg trials, which in turn became the cornerstone of modern war crime legislation. Whereas the pre-Nuremberg jurisdiction largely embraced the principle of superior responsibility, whereby a subordinate executing criminal orders was not to be held liable for them, the trials of the Nazi war criminals brought about a complete reversal of this doctrine. While remaining faithful to the spirit of the Nuremberg jurisdiction, the subsequent legislative acts (which dealt, among other things, with the atrocities committed in the former Yugoslavia) sought to further elaborate its underlying principle of absolute liability, in order to precisely determine the question of guilt and innocence. I argue that despite the close relationship between modern legal systems and Roman law, which fully embraced the doctrine of superior responsibility, it is in the juridical thought of ancient Athens that one finds the archetype of contemporary war crime legislation.

Keywords:

• Superior orders
• Nuremberg defence
• Lysias
• Eratosthenes
• Thirty Tyrants

Notes

This essay is based on a paper originally presented at ISSEI’s 15th International Conference, “What’s New in the New Europe?”, The University of Lodz, Poland, July 11–15, 2016.

1. Lauterpacht and Oppenheim, International Law, 2.453–54 (the two subsequent editions of this work from 1940 and 1952 dismiss the doctrine of respondeat superior). Cf. also British Manual of Military Law (1914), Article 443; US Rules of Land Warfare (1914); for further discussion, see Dinstein, Superior Orders, 38–48; Satō, Illegal Orders, 21–24.

2. The so-called Leipzig trials of German war criminals, conducted by the Weimar Republic under the pressure of the Allied Powers in 1919; most of these resulted in acquittal or token convictions; cf. Dinstein, Superior Orders, 10–19.

3. Extract from the Yearbook of the International Law Commission, 1950, vol. 2, 375. Cf. Satō, Illegal Orders, 111; for more on the moral choice criterion cf. Dinstein, Superior Orders, 147–56.

4. Article IV, Draft Code of Offences Against the Peace and Security of Mankind. Cf. Satō, Illegal Orders, 112–16; Dinstein, Superior Orders, 241–51.

5. Yearbook of International Law Commission 1996, vol. 2.2, 24. Cf. Satō, Illegal Orders, 115–16.

6. Rome Statute of the International Criminal Court (art. 33, July 17, 1998). Cf. Satō, Illegal Orders, 119–26; Dinstein, Superior Orders, xx–xxvii.

7. Prosecutor vs Erdemović (International Criminal Tribunal for the former Yugoslavia), Sentencing Judgement (Nov. 29, 1996). Cf. Lauterpacht, Greenwood, and Oppenheimer, International Law Reports, 111, 397; see also Satō, Illegal Orders, 137–38.

8. USA v. Ohlendorf et al (Einsatzgruppen trial), 480. Cf. Casese et al., International Criminal Law, 473–75.

9. Cf. Zacharski’s article in this volume.

10. Satō, Illegal Orders, 133–47; Cassese et al., International Criminal Law, 467–87; Dinstein, Superior Orders, xxvii–xxxii.

11. See Todd, Athenian Law, 3–4, 11–13 for a discussion of this issue.

12. See Todd, Athenian Law, 18–20; Todd and Millett, “Law and Society,” 14; Finley, Ancient History, 99–101; Bonner and Smith, Administration of Justice, 2.288–303; see also MacDowell, Law in Athens, 9; Gagarin, “Unity of Greek Law.”

13. For this problem, see Daube, Superior Orders.

14. Cicero, Inv. 1.11.15; 2.29.86.

15. Rhet. Her. 1.14.24; 1.15.25; 2.17.26.

16. Quintilian, Inst. 3.6.78–79; 7.4.7–9; cf. also Daube, Superior Orders in Roman Law, 10.

17. Cf. Cato’s motion to extradite Caesar to the victims of his transgressions during the Gallic campaign: Plutarch, Caes. 22.3.

18. Xenophon, Hell. 2.3.2; but see Krentz, Thirty, 50; Ostwald, Sovereignty, 477.

19. Krentz, Thirty, 64–67; Whitehead, “Sparta”; Ostwald, Sovereignty, 485.

20. Cf. [Demosthenes], 58.67; Xenophon, Hell. 2.3.47; Whitehad, “Sparta,” 114–17; Nails, People of Plato, 108–111; Németh, Kritias, 25–28.

21. Lysias, 12.43; cf. Krentz, Thirty, 45; Ostwald, Sovereignty, 485.

22. Lysias, 25.19; Xenophon, Hell. 2.3.12; Diodorus Siculus 14.3.2; AthPol. 35.3; cf. Ostwald, Sovereignty, 480.

23. Xenophon Hell. 2.3.12; Diodorus Siculus 14.4.2; AthPol. 35.3; cf. also Lysias, 25.19; Krentz, Thirty; Ostwald, Sovereignty, 480; Németh, Kritias; on sycophants, see Christ, Litigious Athenian, 48–117; Osborne, “Vexatious Litigation”; Harvey “The Sykophant.”

24. See (in addition to sources listed above) Lysias, 12.5; Plato, Ep. 7 324d.

25. Xenophon, Hell. 2.4.2, 2.3.19; AthPol. 36.2; Krentz, Thirty, 64–65; Németh, Kritias, 59–73; 86–90.

26. Lysias, 12.94; 13.46; Xenophon, Hell. 2.3.13–14; Diodorus Siculus 14.4.3–4; AthPol. 37.2; cf. Krentz, Thirty, 87.

27. See Krentz, Thirty, 82, 126–27; Wolpert, Violence of the Thirty, 218–19.

28. Xenophon, Hell. 2.3.20, 2.4.1, 2.4.5–10; Diodorus Siculus 14.32.4; AthPol. 37.2; Lysias, 12.52; 13.44; 25.22; Isocrates, 7.67; 20.11; Aeschines, 3.235; cf. Ostwald, Sovereignty, 488–89; Buck, Thrasybulus, 63–64; Németh, Kritias, 139–58.

29. Most likely 8 months of the Thirty with an additional 5 months of the rule of Ten (which succeeded the Thirty): cf. Krentz, Thirty, 147–52.

30. Sch. Aeschines, 1.39; other accounts speak of 1,500 Athenian citizens put to death: Isocrates, 7.67; 20.11; Aeschines, 3.235; cf. Rhodes, A Commentary, 447; Németh, Kritias, 141–42.

31. See Gehrke, Stasis, 234–36; cf. however Gray, Stasis and Stability for evidence and various paradigms of post-stasis reconciliation.

32. On the amnesty and its legacy, see Cloché, Restauration démocratique, 241–77, 343–404; Loening, Reconciliation Agreement; Wolpert, Remembering Defeat, 29–59, 75–99; Carawan, The Athenian Amnesty; cf. also Nails, People of Plato, 219–22.

33. AthPol. 39.5–6; cf. Andocides, 1.90; Xenophon, Hell. 2.4.38, 43; see also Rhodes, Commentary, 468–69; Loening, Reconciliation Agreement, 39–49.

34. Cf. Carawan, Law of Draco, 376; Carawan, The Athenian Amnesty, 165–70; for problems with Lysias’ juridical status (as a metic), see Bearzot, Lisia, 44–47.

35. Ten: Lysias, 12.7; thirty (implied): Xenophon, Hell. 2.3.21; sixty: Diodorus Siculus 14.5.6; cf. Krentz, Thirty, 80–81; Bearzot, Lisia, 108; “purge of metics”: Buck, Thrasybulus, 73–74.

36. Lysias, 12.6–7; cf. Bearzot, Lisia, 106–7; Balot, Greed and Injustice, 223–25.

37. Krentz, “Eratosthenes,” 28–32 (discussed below); but see Xenophon, Hell. 2.3.21; Diodorus Siculus 14.5.6; cf. AthPol. 35.4; cf. also Sommerstein, “Murder of Polemarchus.”

38. Cloché, Restauration démocratique, 310–12; Gernet and Bizos, Lysias 1.157; Bearzot, Lisia, 50–57; Phillips, Avengers of Blood, 153–56.

39. Rhinon and others: AthPol. 38.4; Isocrates, 18.8; cf. Krentz, Thirty, 122–23; Rhodes, Commentary, 462; see also Cloché, Restauration démocratique, 344–45; anonymous members of the Thirty: Lysias, 10.31; cf. however Wolpert, Remembering Defeat, 60; Todd, Commentary on Lysias, 639–40; an otherwise unproved (and largely discarded) emendation of Isocrates, 18.22 suggests also Pheidon; cf. however Cloché, Restauration démocratique, 345 n. 2; Krentz, Thirty, 122 n. 43.

40. Loening, “Autobiographical Speeches,” 284–87; Loening, Reconciliation Agreement, 69–71; cf. however Bearzot, Lisia, 36–40; Phillips, Avengers of Blood, 155.

41. Andocides 1.94; cf. however the specious argumentation in Lysias, 13.85–87 with Carawan, The Athenian Amnesty, 125–27.

42. Lysias 12.25 (trans. Todd); on erōtēsis see Carawan, “Erōtēsis.”

43. See Harris, Democracy, 68–69; Harris, Rule of Law in Action, 288–89.

44. “I shall beg those beneath the earth to be understanding, since I act under constraint, but I shall obey those in authority.” Sophocles, Ant. 63–67 (trans. Lloyd-Jones).

45. “It was in obedience to him that I killed my mother. Consider him unholy, put him to death! It was he who acted wrongfully, not I;” Euripides, Or. 591, 595 (trans. Kovacs).

46. “You yourself are not jointly responsible for this; you did it, from first to last, and you’re entirely responsible.” Aeschylus, Eum. 198–200 (trans. Sommerstein).

47. Aeschylus, Cho. 269–95; Euripides, Or. 493–95 with 417–18 respectively.

48. Aristotle, EN 1110a-b; cf. Cooper, “Aristotelian Responsibility,” 289 n. 29.

49. Aristotle, Rh. 1374b; cf. Harris, Rule of Law in Action, 285–89.

50. Andocides 1.95 and 1.96–98; on the authenticity of the latter document, cf. the debate of Harris, “Document at Andocides,” and Sommerstein, “Demophantus’ Decree.”

51. Lysias 20.14 (trans. Todd); the oath mentioned is sworn by every member of the Council upon taking up his duty; cf. Rhodes, The Athenian Boule, 194–99.

52. Garnsey, Famine, 134142; cf. Todd, Athenian Law, 320–21.

53. Lysias 22.5 (trans. Todd).

54. Ibid., 22.10.

55. Ibid., 22.8; cf. Edwards, Commentary, 150.

56. See Bateman, “Some Aspects,” 169; cf. Edwards and Usher, Commentary, 241; Edwards, Commentary, 98; Usher, Greek Oratory, 61; but see Dover, Greek Popular Morality, 148.

57. Lysias, 12.92–93; but see 12.57–58; cf. Wolpert, Remembering Defeat, 91.

58. Lysias, 12.27 (trans. Todd); on the rhetorical nature of this argument (eikos) cf. Edwards and Usher, Commentary, 241; Edwards, Commentary, 98; Usher, Greek Oratory, 61.

59. Cf. Edwards and Usher, Commentary, 241; Edwards, Commentary, 98.

60. Lysias, 12.28–29 (trans. Todd).

61. Lysias, 12.43–4, 76; Whitehead, “Sparta,” 119–20.

62. Lysias, 12.50; cf. Murphy, “Vilification of Eratosthenes”; Carawan, The Athenian Amnesty, 166; Volonaki, “Creating Responsibility,” 48.

63. Bateman, “Some Aspects,” 168; cf. Murphy, “Vilification of Eratosthenes,” 46; Bearzot, Lisia, 123.

64. Lysias, 12.62–78; cf. Murphy, “Vilification of Eratosthenes,” 44–49.

65. Xenophon, Hell. 2.3.15–56; cf. AthPol 36.1–37.2; see also Krentz, Thirty, 67–68, 74–76.

66. Lysias, 12.51, 77–78; cf. Murphy, “Vilification of Eratosthenes,” 45.

67. Xenophon’s wording strongly suggests this: “they ordered Theramenes to choose whomever he wanted” (Hell. 2.3.22); cf. Whitehead, “Sparta,” 128; Ostwald, Sovereignty, 487; see also Bearzot, Lisia, 122–23.

68. On historical problems with Xenophon’s account cf. Ostwald, Sovereignty, 483.

69. Plato, Ap. 37c-d; Ep. 7 324e–325a; Andocides 1.94; cf. Xenophon, Hell. 2.3.39; Mem. 4.4.3; cf. Ostwald, Sovereignty, 486 n. 103.

70. Lysias, 12.31 (trans. Todd, modified).

71. Plato, Ap. 37c; cf. Isocrates, 18.17.

72. Lysias, 12.16 (trans. Todd); see also Krentz, “Eratosthenes,” 25 (on lack of witnesses) and [Demosthenes], 46.4–8 with MacDowell, Law in Athens, 243, 245, and Todd, “Purpose of Evidence,” 27–28, 37 (on hearsay and its inadmissibilty).

73. For details of what follows, see Lysias, 12.8–16 with Bolonyai, “Earrings,” 37–39.

74. See Lysias, 12.6; cf. Németh, Kritias, 105, 107.

75. See Phillips, Avengers of Blood, 169 n. 54 on Peison’s motives and intentions.

76. Lysias, 12.26, 31, respectively.

77. See Krentz, “Eratosthenes,” 29; Sommerstein, “Murder of Polemarchus,” 372; Edwards and Usher, Commentary, 241; Bearzot, Lisia, 124–25; Edwards, Commentary, 97; Todd, Lysias, 122; but see Avezzù, Lisia, 124 n. 35.

78. Lysias, 12.34 (trans. Todd); cf. Bearzot, Lisia, 126–27.

79. Thus Krentz, “Eratosthenes,” 28–32 (based chiefly on a strained reading of “afraid,” dediōs at Lysias, 12.25); contra: Sommerstein, “Murder of Polemarchus”; Bearzot, Lisia, 118–21.

80. Lysias, 13.52–54; cf. Volonaki, Creating Responsibility, 40.

81. Xenophon, Mem. 1.2.12; Plato, Chrm. passim; Prt. passim; Crit. passim.; Tim. passim (cf. however Nails, People of Plato, 106–7 for the latter two)—but see Xenophon, Mem. 1.2.31–38; cf. Krentz, Thirty, 82–83; Buck, Thrasybulus, 90–91; Wolpert, Remembering Defeat, 63–65; Nails, People of Plato, 108–111; Filonik, “Athenian Impiety Trials,” 54–56.