Proposal for ISME 2008

Title: On the Moral Acceptability of “Befehl ist Befehl.”

Author: Kevin M. Bond

Affiliation: University of Tennessee at Knoxville, Department of Philosophy

Presentation: 2008 International Society for Military Ethics

Abstract

In this essay I explore some of the complexity of the “Befehl ist Befehl” defense. On one hand, when we take into account the complexities of war, human psychology, and suppositions of moral responsibility, it is plausible that soldiers may be justified in following orders, uncritically, when they are caught in a moral dilemma or in the “heat of battle.” On the other hand, there are numerous examples in history where uncritically following orders has led to unimaginable and unconscionable suffering. In exploring the defense of “just following orders,” I argue that in the “heat of battle” or in cases of moral dilemma, the wrongness in these situations lies not in that orders should not have been followed, but that such orders should never have been given in the first place. Hence, moral condemnation must rest most severely on those who initiate illegal or immoral orders, and towards those who enforce the ideals which led to the morally questionable practices. However, I further show that we cannot embrace wholeheartedly the lack of individual responsibility, because to do so would lend justification to atrocities such as seen in Nazi Germany, Japan’s Unit 731, or the My Lei Massacre.

Keywords: Respondeat Superior, Befehl ist Befehl, Lawful Orders, Moral Judgment, Nazi Defense

Word Count: 2,673

Contact Information

Kevin M. Bond

801 McClung Tower

Knoxville, TN 37996

Kbond1@utk.edu

(865) 405-3116

Often used by those committing atrocities, the defense of “just following orders” has been criticized and largely seen as invalid since World War Two. In legal terms this is known as Respondeat superior (Latin for “let the master answer”). From its appearance in the Nuremburg Trials, “just following orders” is also known as Befehl ist Befehl, “instruction is instruction,” or “order is order.” In this essay I explore some of the complexity of the “Befehl ist Befehl” defense. On one hand, when we take into account the complexities of war, human psychology, and suppositions of moral responsibility, it is plausible that soldiers may be justified in following orders, uncritically, when they are caught in a moral dilemma or in the “heat of battle.” On the other hand, there are numerous examples in history where uncritically following orders has led to unimaginable and unconscionable suffering. In exploring the defense of “just following orders,” I argue that in the “heat of battle” or in cases of moral dilemma, the wrongness in these situations lies not solely in that orders should not have been followed, but that such orders should never have been given in the first place. Hence, moral condemnation must rest most severely on those who initiate illegal or immoral orders, and towards those who enforce the ideals which led to the morally questionable practices. However, I further show that we cannot embrace wholeheartedly the lack of individual responsibility, because to do so would lend justification to atrocities such as seen in Nazi Germany, Japan’s Unit 731, or the My Lei Massacre.

§1: The Defense: I Was Just Following Orders

Before giving two interpretations of this defense, I want to point out that the appropriateness of following orders is not at all uncommon in everyday situations and is, in fact, necessary for the properly functioning society. “Why did you….?” is frequently justified with “Because so-and-so told me to!” This is not offered as a simple excuse, it is offered as a justifiable reason for an action. This justification is allowable precisely because in many situations people are expected to follow orders: Children follow the orders of adults (especially their parents), students follow their teachers’ instructions, employees follow employers’ rules, soldiers follow officers’ commands, patients obey doctors’ instructions, and parishioners obey their church laws. Granted, this is not always the case, but we must concede that disobedience is the exception, not the rule. Thus, following orders is the norm and not simply an excuse for wrong actions when morally questionable consequences happen. In fact, in most situations, disobedience is discouraged, punished, or at least frowned upon.

Now, consider at least two interpretations of the use of “Befehl ist Befehl” as a defense for a morally wrong action. (1) The Mechanistic Defense – this defense relies on a claim that although the agent is the physical cause of the moral wrongdoing, he is not the efficient cause of the wrongdoing. The agent is nothing more, nor less, than a cog in a machine. As such, he has no real autonomy, as no moral choice realistically exists to him in his actions. Hence, the agent is morally free from blame or condemnation. (2) The Limited Autonomy Defense – this defense relies on a claim that although the agent is not an element in a machine, he is nonetheless limited in his autonomy due to the lack of autonomy enabling information.[1] This lack of information dictates that the agent must rely upon others for information used in deciding what to do. As such, although the results of his action may elicit morally heinous consequences, he is himself motivationally blameless in the activity. For, arguably, had the agent known otherwise he could have acted differently.

Most people reject the mechanistic defense unless they have solid commitment to materialistic, deterministic, or otherwise mathematical-mechanical metaphysics. Yet, the mechanization of individuals is the desired goal of some types of training, for example “following orders” instills cohesion in a military unit that allows the unit to achieve mission objectives. Likewise, in emergency situations “following orders” allows for swift and efficient mobilization, containment, and resolution of the emergency. We know that some degree of mechanization occurs routinely in various institutions. Furthermore, we know that with enough pressure, almost any individual will lose personal volition. Consider: Fraternal organizations routinely engage in behavior designed to get pledges to conform to the group structure; Public schools (in the U.S.) operate under Ford factory models which, consequently, encourage group-think and obedience to society; Cults and gangs engage in sophisticated psychological techniques to isolate individuals from their support networks and brainwash them into willing servants of the cult or gang; Corporate atmospheres are also known to encourage certain unethical climates. In many cases, the mechanization of individuals is the desired goal of some types of training.

It is an empirical question as to how deeply individuals can be rendered automatons. Yet, the degree to which an individual loses autonomy in these situations should be relevant and taken into consideration when we decide the degree to which we assign moral responsibility for an action. That is, the closer someone is to a cog in the machine the more justification they will have in pleading “Befehl ist Befehl.” Thus, moral responsibility is not a binary assignment, but rather something to be placed on a sliding scale of responsibility. In situations in which individuals are significantly mechanized in their actions, the wrongness in these situations lies less in that orders should not have been followed, but that such orders should never have been given in the first place. Hence, moral condemnation must rest most heavily upon those who initiate illegal or immoral orders, and upon those who enforce the ideals which led to the morally questionable practices.

For agents who are not sufficiently indoctrinated into mechanical reactions, limited autonomy may also explain or justify their defense. In this case, I want to consider the situations in which autonomy is limited due to problems with justified limited knowledge including, but not limited to, lack of information and false or misleading information.[2]

Institutions often try to deflect responsibility by instituting policy that individuals should only follow only legal or moral orders. Such policy offers the institutions a shield from criticism while also offering an illusion of agent autonomy. I concede that a majority of the time this may be a fair policy as it does reinforce a belief in personal responsibility. Yet it cannot be denied that there are situations of moral uncertainty where individuals may be unable to differentiate between illegal versus legal orders or moral versus immoral orders. Consider the following simplified case. Suppose that, unknown to you, your company is about to be audited by the IRS. Moreover, again unknown to you, electronic documents are stored on your computer implicating your company in wrongdoing. Your boss comes to your office one day and orders you to format your hard drive because, he claims, of virus problems on the network.[3] Do you have any legitimate reason to suspect that you were given an illegal or immoral order? While professionals must be familiar with rules, laws, and ethical codes for their profession, it is a fair question to ask whether busy professionals have the time, experience, or knowledge to check out every possibly contingency of illegal or immoral action. The mere presence of legal departments, or ethics committees, seems to indicate that these are specialized services which professionals require precisely because they need guidance in some situations.

People do not always have the luxury of having unlimited time, knowledge, and resources necessary to make legal and moral choices. Thus, education and training are important so that people can react, correctly, when confronted by moral dilemma. The twin byproducts of this are that we train people to react mechanistically to situations and we train people to obey orders. Yet we sometimes neglect the educational components of moral deliberation, especially about how to determine whether or not an order is legal or moral. As some ex-soldiers have related to me, they only vaguely remember lectures on the Geneva Convention, but they all knew that if they disobeyed orders they would be court marshaled. This makes sense given that large organizational structures have found that it is prudent to have a system in place that allows for, or even demands, that people follow orders when someone with legitimate authority over them tells them what to do. Moreover, even in situations with limited information, an individual must sometimes act. In some cases this means following orders without determining if they are legal, proper, or even moral. Precisely because information is limited, agents may have a valid defense of “Befehl ist Befehl.”

So there are cases in which following orders are justified: situations in which an individual is acting as an automation or when their autonomy is significantly limited. Let’s turn to a case to see why we cannot embrace this defense wholeheartedly.

§2: Karl Brandt – Nazi Medical Doctor

Karl Brandt was one of the dominant medical figures in Nazi Germany.[4] Doctor Brandt was Hitler’s personal physician and was involved in many activities which eventually led to his hanging after the Nuremburg Medical Trials: formalizing a program of medical killing of children, expanding this program to a focus on adult chronic patients in the T4 program, advocating the use of carbon monoxide poisoning as a “humane” form of killing, and working with medical experiments. Paradoxically, Brandt was thought of as “a highly ethical person” and was generally well regarded within Germany as a humane idealist. He was angered at some of the brutal handlings of some medical patients and allowed some groups of people to be saved. Brandt’s extensive use of the “following orders defense” during the Nuremburg Trials relating to medical experiments is particularly illuminating.[5]

Brandt claims that “There are three aggravating factors with respect to the question of the criminal element in experiments: their involuntary character, the lack of necessity for them, and the dangers involved.”[6] The President of the Tribunal, Justice Beals, questions Brandt “I would ask counsel if by his question he intends to ask the witness whether the experiments…would be objectionable or illegal if carried on by a physician upon persons in civil life disconnected with the military service.”[7] Brandt claims that under war conditions certain experiments may be deemed ethical and necessary. To argue for this claim, Brandt classifies experiments as voluntary and involuntary, each of which can be further classified as dangerous or non-dangerous. Considering the notion of following orders Brandt says “If there is a danger, the physician must be relieved of all responsibility for the danger that is involved. This is possible only by way of an official order on the part of some superior authority, or some government dispensation, the interests of the state being capable of varying interpretation in time of war.”[8] Thus we see a direct claim that responsibility for some actions are assumed on by some higher authority.

When asked about the ethical evaluation of physicians experimenting upon people, Brandt continues:

May I first of all repeat, so that I am sure I have understood correctly. In the conduct of the experiments it is assumed that they are of the highest military importance, that the test persons have not given their consent, and that the experiments are dangerous, with death the possible outcome. In such a case I am of the opinion, considering the war situation, that the individual or government institution determining their importance must also undertake to relieve the physician of responsibility in the event of a fatal outcome of the experiment.[9]

Trying to unpack the implications of the “Befehl ist Befehl” defense implied here, Judge Sebring asks, “Now, does it take away the responsibility from the physician, in your view, or does it share the responsibility with the physician in your view?”[10] This resembles what I referred to earlier as the Mechanistic Defense versus the Limited Autonomy Defense. Brandt first, subtly, appeals to the former:

In my opinion it removes it from the physician, for from this moment on the physician is only an instrument, in about the same way as is an officer in the field who is ordered to take a group of three or five soldiers without fail to a position where they will perish, fall. When I apply the relationship of our German conditions during war, it is basically the same. I do not believe that the physician on his own would or could conduct such an experiment by his medical ethics or his moral sense, unless he had immunity from the authoritarian state, which would give him, on the one hand, security under formal law, and on the other hand, a direct order to carry out.[11]

This prompts Judge Sebring to ask Brandt about following orders, “Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death of the subject?”[12] Brandt responds by appealing to limited autonomy, “It depends on the clear chain of command that would apply in such a case.”[13] Brandt elucidates this by appealing to an analogy of soldiers following orders in the military—soldiers follow orders even when (or especially when) they have imperfect knowledge of the situation. Likewise, according to Brandt, physicians must follow orders. Failure to follow orders, for soldiers and physicians, means being held accountable for disobeying orders. According to Brandt, “Had this physician refused to carry out the experiments [as ordered to by the state], he would have surely been called to account for his failure. In such a case…personal response to a code of ethics peculiar to a specific profession had to give way to the total character of this war.”[14]

§3: Lessons from this Defense

Nazi medical doctors often used the “Befehl ist Befehl” defense coupled with two further notions – military necessity and ethics during times of war are different than ethics during times of peace – to claim that certain actions are justified, e.g., euthanizing certain populations or engaging in medical experiments “for the greater good.” These defense arguments used in the Nuremburg Medical Trials have been solidly rejected time and time again.

In extreme cases, such as occurred in the Holocaust, the mechanization of an individual and the cultivation of limited knowledge reduced autonomy and resulted in immoral actions and moral irresponsibility. In these extreme instances, the wrongness in these situations lies not only with the individual following orders, but in the fact that such orders should never have been given in the first place. Hence, moral condemnation must also rest upon those who initiate illegal or immoral orders, and upon those who enforce the ideals which led to the morally questionable practices.

In conclusion, there are instances in which “Befehl ist Befehl” is justifiable. “Just following orders” can provide a legitimate defense and can provide relevant information that should be taken into consideration in a defense. On a practical and moral level, “Befehl ist Befehl” is a significant part of military training and tradition. While following orders in the military is generally justified, I suggest that when we exam the complexities of war, human psychology, and individual moral responsibility it is plausible that soldiers may follow orders while having difficulty determining if an order is legal and moral. Because of the horrifying results of blindly following orders, as seen by the atrocities committed by Nazi Doctors, Japanese researchers in Unit 731, and the soldiers who participated in the My Lai Massacre, we need to understand and evaluate the appropriateness of “just following orders.” Since we, as a society, hold individuals responsible for their actions, we need to provide the education and training necessary for individuals, especially soldiers, to explore and to determine what constitutes a legal valid, and proper order. We must also provide the education and training necessary to foster correct responses to moral dilemma.

Selection of Works Referenced

French, Shannon E. The Code of the Warrior. Lanham, MD: Rowman and Littlefield, 2003.

Huntington, Samuel P. The Soldier and the State: The Theory and Politics of Civil-Military Relations. Cambridge: The Belknap Press, 1957.

World Medical Association. Declaration of Tokyo. http://www.wma.net/e/policy/c18.htm

Lifton, Robert J. The Nazi Doctors. New York: Basic books, 1986: 193-213.

Mitscheerlich, Alexander. Doctors of Infamy: The Story of the Nazi Medical Crimes. (New York: Knickerbocker Printing Corps, 1949).

“Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.” in Department of Army, Treaties Governing Land Warfare. Washington, DC: 1959, 24-47.

Notes