Equipo Nizkor - South Africa: R. v. Werner et. al.

Watermeyer, C.J.: The appellants were charged in the Natal Provincial Division with the murder of one Helmut Haensel. They were tried before Mr. Justice Carlisle, sitting with two assessors, convicted and sentenced to imprisonment with hard labour for five years.

From the record it appears that the appellants and Haensel were all prisoners-of-war who had been captured in North Africa, and they were being detained in a camp near Pietermaritzburg; that on 6th June, 1942, the appellants together with certain other prisoners caused the death of Haensel by placing a rope round his neck and hanging him to a tent pole. The events which led up to the killing of Haensel are set out in the judgment of the trial court as follows:

"The two accused were members of a batch of about one thousand prisoners-of-war brought to Pietermaritzburg in June, 1942. In this batch, which was the second to arrive here, there were no officers. After their arrival No. 1 accused was elected camp leader by his fellow prisoners and his appointment as such was confirmed by the officer commanding the P.O.W. camp. This second lot of prisoners occupied the camp immediately, after the first lot, consisting of officers and men, had been removed in transit for Canada. Some officers of this batch, however, did not go with it. They had had a dugout made in the music pavilion and hid in it intending to escape if possible. The existence of this dugout and the absence of these officers was not discovered by the Union soldiers in the camp. Two of these officers were Major von Lubke and Lieut. von Grabert, both of whom remained hidden in the camp. They were still hiding there when the second batch of prisoners arrived. It was not long before their presence became known to No. 1 accused and to the other prisoners-of-war. There is no reason to doubt No. 1 accused's evidence that he was ordered by Major von Lubke to see to it that the presence of these officers should be kept secret. Soon after this the deceased Haensel re-arrived at Pietermaritzburg; he had tried to escape from a ship at the Cape by jumping overboard, had been recaptured and had, after a spell in hospital, been returned to the camp. There is sufficient evidence on the record to show that Haensel's loyalty was deeply suspected by his fellow prisoners. No. 1 accused said, and there is no reason to disbelieve him, that Major von J. Lubke had heard of Haensel's arrival in the hospital and had given orders to No. 1 to see to it that the German prisoners-of-war in hospital should be careful of their talk in Haensel's presence. On Haensel's arrival in camp, which was on the forenoon of the 6th June, when he was discharged from hospital, there was a demonstration by some of the prisoners-of-war against him. The current opinion amongst the P.O.W.'s appears to have been that Haensel was looked upon as a spy, as a traitor and as a British agent. There is no evidence, naturally, upon which the Court can say whether or not this estimate of Haensel was justified but it seems reasonably clear that it was held by the majority of the prisoners. Now No. 1 accused, as the camp leader, was, of course, in close touch with the two hidden officers. He says that on the morning of the 6th June he was sent for and found both officers in his tent. He was told that the presence of Haensel was a source of danger and that if Haensel had been sent as a spy it might lead to the discovery of the two officers. Major von Lubke said that he intented to ascertain the truth of these rumours by calling before him such men in the camp who were in a position to depose what they knew about Haensel. These men were brought in and were told by Major von Lubke that they were to give evidence upon oath as they would do in Germany; that they were not to repeat hearsay statements but to confine their statements to what they personally knew. No. 1 says that the Major further told the men that they would have to repeat this evidence in Germany when they got back there. The evidence of these men was then heard. The conclusion of the matter was that Major von Lubke gave his decision. It was that on his responsibility and by his order Haensel should be executed that night. He ordered No. 1 to carry out the sentence that evening and to get men to assist him to do so. Some time that day, after this sentence had been pronounced and the order given, No. 1, who was friendly with Regimental Sergeant Major Smale, a member of the Union forces in the camp, asked Smale whether it would possible to have Haensel moved out of the camp because of his unpopularity with the other men. Smale referred this request to the camp commandant who refused it. In his evidence, and there is no reason to disbelieve it, No. 1 accused said that he made this request entirely on his responsibility and without the knowledge or authority of either of the two officers. He thought that it would have met with the full approval of Major von Lubke had that officer known that it was to be made. It is, I think , clear that No. 1 desired, if possible, to have Haensel moved out of the camp even temporarily for by his removal any danger of his discovering and reporting the presence of the two officers would disappear. It is, in our opinion, a fair inference that the motive behind this request made by No. 1 accused was to avoid the commission of any violence upon Haensel. That evening Haensel was brought into the music pavilion in accordance with Major von Lubke's instructions. Major von Lubke was not there. Those present were Lieut. von Grabert, the two accused and some others. Haensel was overpowered, gagged and throttled. His body was hung by the neck from the tent pole, into which two nails had been driven to retain the rope. All the arrangements for this atrocious deed were made by No. 1 accused. The dead body was found soon after. No foul play was suspected by the Defence Force officers or, if it was, no proof of it was available. No. 1 accused had see to that by telling the prisoners of war at roll call early next morning that if questions were put to them about Haensel they were to reply by saying that they knew nothing about the matter. It was only after the cessation of hostilities between His Majesty's Forces and those of the German Reich that any knowledge of the true facts was obtained."

After conviction the following question of law was reserved for the consideration of this Court:

" Whether there is legal evidence on the record on which a reasonable man could properly convict Werner and Wallat of murder."

That stereotyped form of reservation does not disclose the real question of law which counsel for the appellant sought to raise. The main contention which he advanced was that the killing of Haensel was not murder because the accused acted under orders given to them by a superior officer, which they thought they were under a duty as soldiers to obey.

Before considering that contention it is necessary to be clear as to the legal principles which must be applied, in particular as to the system of law which governs the matter.

With regard to the system of law to which the accused were subject, it appears from Article 45 of the Geneva Convention of 27 July, 1929, that, while they were prisoners-of-war, they were subject to the laws, regulations and orders in force in the armed forces of the detaining power. Consequently, in terms of that convention, the legal quality of their acts must be determined by the laws which at that time regulated the conduct of the Union forces. Moreover, apart from the Geneva Convention, since criminal law is territorial, the question whether the acts done by them in South Africa constituted a crime, and, if so, what crime, must be decided by the law of South Africa.

Now, it is clear that according to the law of South Africa, including in that law the statutory provisions and rules which govern the South African forces, the so-called trial of Haensel by Major von Lubke was entirely illegal and the order given by him that Haensel should be executed was an unlawful order for which no legal justification exists in our law. Consequently the execution of Haensel under that order was an unlawful homicide according to the law of South Africa. The accused took part in that homicide and are therefore criminally responsible for it unless their actions were in some way justified or excused.

It was contended on their behalf that they were excused because they acted in consequence of the orders given which they were bound to obey, or, at any rate, thought they were bound to obey.

In dealing with the duties of a soldier to obey the orders of a superior officer the learned Judge who gave the judgment accepted the law laid down in Reg. v. Smith (17, S.C. 561) as governing the situation. In that case Solomon, J., said:

"After looking at authorities quoted from the bar and such other authorities as have been accessible, it seems to me that the rule laid down in the 'Manual of Military Law' is a reasonable and proper rule to apply in such a case as this. This states that if the commands are obviously illegal, an inferior would be justified in questioning or even refusing to execute such commands, but as long as the orders of the superior are not obviously and decidedly in opposition to the law of the land, or to the well-known established customs of the army, so long must they meet with complete and unhesitating obedience. There is an opinion of Mr. Justice Wills to the effect that an officer or soldier acting under orders from his superior which are not necessarily or manifestly illegal, would be justified. I think the rule a reasonable one, and one which has become a well-established principle of law. The well-known principle of criminal law demands that there must be some blame-worthy condition of mind, some guilty knowledge shown to the Court to justify finding a person guilty of a crime. It would shock one's ideas of what is right and just if a man were convicted of a crime if there is not blame in some way or other. If he did a thing without knowing he was doing wrong, or had reasonable grounds for believing that certain facts existed which justified his doing a thing, he would be excused on the ground that there was no guilty knowledge on his part. I think it is a safe rule to lay down that if a soldier honestly believes he is doing his duty in obeying the commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known that they were unlawful, the private soldier would be protected by the orders of his superior officer."

I am inclined to think that some portions of these remarks require qualification. For example, the words:

"If he did a thing without knowing he was doing wrong . . . he would excused."

would suggest that ignorance of law is an excuse. But, for the part, this statement of the law seems to agree with the views held by many modern writers on the subject (see, for example, a statement by Lord Wright in 1946, L.Q.R., p. 46; Article by Prof. Sack on Punishment of War Criminals and the Defence of Superior Order, in 1944, L.Q.R. , p. 63; Hall, International Law (8th Edition, p. 499); Article by J. H. Morgan, K.C., in the Quarterly Review, April, 1947, entitled Nuremberg and After. See also Digest (50.17.169); Grotius, de Jure Belli, Bk. II, ch. 26; Grueber, Lex Aquilia (9.2.37), p. 140; Leyser (Sp. 534)).

I think it is clear, however, that Solomon, J., was referring to soldiers engaged in military operations, or, at any rate, actually under the command of the officer who gave the order, and not to state of affairs such as existed in this camp for prisoners-of-war, where the prisoners were under the command of a South African officer and not under the command of the German officer who was secretly in hiding in the camp.

Carlisle, J., accepted the law laid down in Rex v. Smith, and in seeking to apply it apply it, made the following remarks:

"It will be seen from this rule that it is not enough for a soldier to honestly believe he is doing his duty in obeying the command of his superior. He must, in addition be satisfied that the order is not so manifestly illegal as to be unlawful."

He then came to the conclusion that the order was illegal, and continued :

"The next question that we have to consider is whether this order was so manifestly or obviously illegal that each of the accused must, or ought to have known that he was doing wrong in obeying it. We find that the answer to that question is in the affirmative. Each of the accused is a man of keen intelligence. In the circumstances we find them guilty."

From these passages it will be seen that the learned Judge took it for granted that the accused believed that it was their duty to obey such orders, but came to the conclusion that they knew or ought to have known that the orders were illegal and, therefore that their belief was unreasonable or at any rate blameworthy, and consequently that it was not a state of mind which excused or justified their acts. Consequently, judging their conduct by the standard applicable to a soldier who was engaged in military operations or, at any rate, under the command of the officer who gave the order, he came to the conclusion that they were legally responsible for the death of Haensel. Their position, however, so far as legal immunity for crimes committed in consequence of orders is concerned, was, in my opinion, less favourable in the camp for prisoners-of-war than it would have been if they had been under the command of von Lubke. He was in hiding in the camp and had, by South African Law, no authority to give orders to the accused and they were under no duty to obey such orders, even if those orders had not been so obviously illegal that they should have known them to be illegal. It may, however, be that the accused thought that they were bound to obey von Lubke's orders. They say that they thought the law prevailing in the German armed forces was applicable to them and that it compelled them to obey von Lubke's orders. No expert evidence was given to show what the German military law was in the situation which arose, but whatever it might have been it did not operate in a camp for prisoners-of-war in South Africa. Consequently, even if it be accepted that the accused believed that by German law they were bound to obey von Lubke's order, they were mistaken in thinking that the duties imposed on them by German law compelled them to take Haensel's life in a camp for prisoners-of-war in South Africa. That mistake was a mistake of law, and, since it is a recognized principle of our criminal law that ignorance of law does not excuse, it follows that, even if it be assumed in their favour that in fact they believed that they were bound to obey the orders given by an officer, such a belief did not relieve them of criminal responsibility for the killing of Haensel.

I have, in what has been said above, assumed that the accused acted as unwilling participants in the killing of Haensel, being compelled thereto by what they conceived to be their duty as soldiers. But it is not clear on the evidence that the accused were unwilling participants in the homicide, who took part in it merely from a sense of duty. The evidence of the accused Werner, who was the camp-leader, shows that he regarded Haensel as a traitor who had to be dealt with either in the camp or when he returned to Germany, that his presence in the camp was a menace to the safety of the hidden officers, and that if he could not be removed from the camp he should be killed. He tried to procure his removal by reporting to the South African sergeant in charge that Haensel's life was in danger, but when no action was taken on that report he acquiesced in and assisted at the execution. In the circumstances, it is somewhat difficult to come to the conclusion that he was an unwilling instrument in the execution, acting solely from a sense of duty, induced by the belief that he was bound to obey an order given him by a superior officer.

The evidence of Wallat was given very shortly. He does not say that he took part in the killing of Haensel solely because he thought he was bound to obey orders, but he does say that he feared that he would be punished if he did not obey orders given to him.

There is also other evidence tending to show that the accused feared that, if they did not obey the orders given them, they would have been regarded as traitors and would have run the risk of severe punishment, possibly death, on their return to Germany. It was suggested in argument that such a fear of punishment on the part of the accused, particularly when such fear was allied to an apprehension that they might themselves be killed by the other prisoners if they did not assist in killing Haensel justified their acts and relieved them of criminal responsibility. This argument is an attempt to extend the principle that immunity from criminal liability is sometimes granted to an accused person who acts under compulsion or from necessity far beyond its commonly recognised limits. There is no evidence of any direct threat or compulsion by anyone but mere evidence by the accused of a fear of some sort of reprisal. No authority dealing with this aspect of the case was quoted by counsel, and I have been unable to find among Dutch-Roman writers on criminal law any clear statement of the limits of the immunity. In English law it seems clear that the circumstances existing in this case did not relieve the accused of criminal responsibility. See Hale, Pleas of the Crown (Vol. 1, sec. 51), and Rex v. Dudley & Stephens (14, Q.B.D. 273). From what appears in those authorities it seems that though a man may in self-defence kill an aggressor, he cannot, in order to save his own life, kill an innocent person.

Kenny, in his book on Criminal Law, says:

"It is, however, clear that threats of the immediate infliction of death, or even of grievous bodily harm, will excuse 'some' crimes that have been committed under the influence of such threats. But it is impossible to say with precision for what crimes the defence will be allowed to avail. It, certainly will not excuse murder. Yet it may excuse the still graver offence of treason, though only in its minor forms: as where a prisoner shews that under pain of death, or of some physical injury falling little short of death, he was forced into giving some subordinate assistance in a rebellion. But he must shew that the compulsion continued throughout the whole time that he was assisting; and that he did no more than he was obliged to do; and that he desisted at the earliest possible opportunity."

The Native Territories Penal Code Act 24 of 1886, sec. 29, contains the following provision:

"Compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of an offence, shall be an excuse for the commission of any offence other than high treason, murder, attempting to murder, assisting in rape, forcible abduction, robbery, causing grievous bodily harm, and arson: Provided that the person under compulsion believes that such threat will be executed: Provided also that he was not a party to any association or conspiracy, and being party to which rendered him subject to such compulsion. No presumption shall be made that a married woman committing an offence in the presence of her husband does so under compulsion."

In Rex v. Mtetwa (1921, T.P.D. 227) Wessels, J.P., expressed the opinion that compulsion does not excuse the crime of murder and in the case of Rex v. Garnsworthy (1923, W.L.D. 17), Dove Wilson, J.P., suggested that a plea of compulsion could only succeed if it was shown that the accused had just cause to fear imminent death or serious bodily injury and that he could not escape from the threat to himself.

The cognate defence of necessity was considered by this Court in the case of Rex v. Mohamed and Another (1938, A.D. 30) and a number of Roman and Roman-Dutch authorities were referred to which I shall not repeat.

I shall not attempt to define the limits within which the plea of compulsion or necessity will excuse criminal conduct. It is enough to say that I am inclined to the view that the killing of an innocent person is never legally justifiable by compulsion or necessity, but even if it be legally justifiable, the fear of punishment or reprisal which existed in the minds of the accused in this case was not a justification.

In the foregoing remarks I have made several assumptions and have discussed contentions put forward in argument upon those assumptions. This is an unsatisfactory procedure. This case is not an appeal and, strictly speaking, if the accused had intended to raise any one of those contentions as a point of law they should have reserved that point as a legal question, and the relevant facts necessary for the Court to know in order to decide the point of law should have been stated. This has been repeatedly pointed out in different cases, the most recent being Rex v. Holtzhausen (1947, S.A.L.R. 567).

The question which was reserved is whether there was legal evidence on the record on which the accused could properly be convicted. As there clearly was ample evidence the answer to this must be in favour of the Crown. Beyond the discussion of the other points contained in these remarks no answer can be given to various contentions put forward on behalf of the accused.

As to the sentence, Carlisle, J., rightly found that mitigating circumstances existed which justified the imposition of a comparatively light sentence (see v.d. Linden (2-1-5-11)). He imposed one of five years imprisonment. It was contended however that this was excessive and should be reduced. We are unable to come to the conclusion that it is excessive and see no reason for reducing it.

Tindall, J.A., and Greenberg, J.A., concurred.

20May1947 - ZAF

Decision of the High Court of South Africa (Natal Provincial Division) in the case of
R. v. Werner et. al.

[Source: 1947 (2) South African Law Reports 828 (A), via International Committee of the Red Cross.]

Judicial Decision
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20May1947 - ZAF

Decision of the High Court of South Africa (Natal Provincial Division) in the case ofR. v. Werner et. al.

[Source: 1947 (2) South African Law Reports 828 (A), via International Committee of the Red Cross.]

Decision of the High Court of South Africa (Natal Provincial Division) in the case of
R. v. Werner et. al.