One defence argument in military law has always befuddled judges; that the accused was merely following the orders of a superior officer.

Although other, perhaps older cases may one day come forward, legal historians generally cite the 1474 case of Peter von Hagenbach as the first instance of the case in which this argument fell on deaf ears, and even that the trial was the first, ever, international criminal trial, or the first trial that considered the theoretical concept of what would come to be known as a war crime.

Von Hagenbach was born in about 1420, a native of Alcace, France and became a favourite of Charles the Bold (aka Charles the Terrible).

Von Hagenbach died on May 9, 1474, drawn and quartered.

medieval artHis legacy:

"In 1474, while occupying the town of Brisach, the troops of Peter Von Hagenbach pillaged the town and murdered civilians.

"Von Hagenbach was accused of crimes against the laws of God and humanity and tried before a tribunal which included judges from Alsace, judges from Switzerland and judges from elsewhere in the Holy Roman Empire.

"In his defence, he argued that he had followed superior orders. The court denied this plea, convicted him of the crime and executed him."1

Two other international law scholars, Michael Scharf and William Schabas described Von Hagenbach's trial as a major stepping stone in the history of international law:

"The history of international war crimes trials begins with the 1474 prosecution of Peter von Hagenbach, a Burgundian governor.

"After it was discovered that his troops had raped and killed innocent civilians and pillaged their property during the occupation of Breisach, Germany,  Hagenbach was tried before a tribunal of twenty-eight judges from the allied states of the Holy Roman Empire, which at that time included Austria, Bohemia, Luxembourg, Milan, the Netherlands, and Switzerland. Hagenbach was found guilty of murder, rape, and other crimes against the 'laws of God and man', stripped of his knighthood, and sentenced to death."

Another, M. Cherif Bassiouni, described the von Hagenbach case as follows:

"The second trial of this historic period was that of Peter von Hagenbach in 1474 in Breisach, Germany. Peter was a Dutch condottiere (a mercenary soldier) - the equivalent of a modern mercenary leader. Peter was hired by the Duke of Burgundy to raise an army to occupy the (German) city of Breisach and exact taxes from its population. The Duke had acquired the city in exchange for services rendered to the Holy Roman Empire. Uninterested in the fate of the distant German townspeople, the French Duke ordered Peter to collect massive exactions. When the townspeople rebelled, the Duke ordered Peter to sack, pillage, rape, and burn the city. Peter obeyed his superior's orders, as was expected at the time. The attack on Breisach was so horrendous that the news spread throughout the empire, bringing about an uncommon consensus that this situation was a 'crime against the laws of God and Man'.

stained glass at Louvre"The leaders of the twenty-six member states of the Holy Roman Empire, either in person or through representatives, acted as international judges to prosecute Peter, a Dutchman, for crimes committed in Germany on the order of a French head of state. For all practical purposes and in accordance with contemporary standards, this established the first international criminal tribunal.

"At the trial, Peter sought to exhibit the written orders of the Duke of Burgundy, but the judges refused to allow him to do so. Allowing this evidence would have conveyed the impression that subordinates in Peter's position should not execute the orders of their superiors when they are so manifestly 'against the laws of God and Man'.

"Accordingly, the court's refusal to accept Peter's defence shielded the Duke from responsibility. Peter was sentenced to be drawn and quartered, a particularly brutal method of inflicting death."

Gregory Gordon of the University of North Dakota School of Law wrote:

"Though it remains obscure in the popular imagination, most legal scholars perceive the trial as a landmark event. Some value it for formulating an embryonic version of crimes against humanity. Others praise it for ostensibly charging rape as a war crime. And all are in agreement that it is the first recorded case in history to reject the defence of superior orders."

Gradually, the law caught up to this specious defence. The father of international law, Hugo Grotius wrote, in the 1600s De Jure Belli:

"'If the authorities issue any order that is contrary to the law of nature or to the commandments of God, the order should not be carried out."

Formally, in the 1945 charter of the Nuremberg Tribunal, the Constitution of the International Military Tribunal:

"The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."

Admittedly, the Von Hagenbach affairs had its share of shortcoming, relying as it did on confessions obtained through torture. In addition, there was no war going on so as far as war crimes go, it was irrelevant. It is also difficult to reconcile the humanity behind this first instance of profound wisdom with the sentence given to Von Hagenbach: that he be drawn and quartered.

Still, the trial of Peter Von Hagenbach is often cited as an important event in the pre-history of international criminal law as the first sputter of what is now a basic tenet of international criminal law: that defence of obedience to superior orders is no defence at all in the event of war crimes or crimes against humanity.

REFERENCES:

  • Bassiouni, M. Cherif, Perspectives on International Criminal Justice, 50 Va. J. Int'l L. 269, 298 (2010)
  • Gordon, Gregory, The Trial of Peter Von Hagenbach: Reconciling History, Historiography, and International Criminal Law, University of North Dakota - School of Law, February 16, 2012.
  • NOTE 1: Rosenstock, Robert, 1994 Mclean Lecture on World Law: The Proposal for an International Criminal Court, 56 U. Pitt. L. Rev. 271 (1994-1995)
  • Paust, Jordan, ILSA Panel Oct. 18, 2003, at Loyola University New Orleans - Panel On History of International Tribunals Prior To Nuremberg: Selective History Of International Tribunals And Efforts Prior To Nuremberg, 10 ILSA J. Int'l & Comp. L. 207 (2003-2004)
  • Scharf, Michael and Schabas, William, Slobodan Milosevic On Trial: A Companion (2002),
  • Solis, Gary, Obedience to Orders, 2 J. Int'l Crim. J. 988 (2004)

Editor's note: neither of the two images are of Von Hagenbach or his trial but are merely representative images of the era.