One of the most noted uses of this plea, or defense
, was by the accused in the 1945–1946 Nuremberg trials
, such that it is also called the "Nuremberg defense". The Nuremberg trials were a series of military tribunals
, held by the main victorious Allies
after World War II
, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany
. These trials, under the London Charter of the International Military Tribunal
that established them, determined that the defense of superior orders was no longer enough to escape punishment, but merely enough to lessen punishment.
Apart from the specific plea of superior orders, discussions about how the general concept of superior orders ought to be used, or ought not to be used, have taken place in various arguments, rulings and statutes that have not necessarily been part of "after the fact" war crimes trials
, strictly speaking. Nevertheless, these discussions and related events help to explain the evolution of the specific plea of superior orders and the history of its usage.
The trial of Peter von Hagenbach
Hagenbach on trial, from Berner
Chronik des Diebold Schilling dem Älteren
In 1474, in the trial of Peter von Hagenbach
by an ad hoc tribunal of the Holy Roman Empire
, the first known "international" recognition of commanders' obligations to act lawfully occurred.
Hagenbach offered the defense that he was just following orders, but this defense was rejected and he was convicted of war crimes
Specifically, Hagenbach was put on trial for atrocities committed under his command but not by him directly, during the occupation of Breisach
. This was the earliest modern European example of the doctrine of command responsibility
Since he was convicted for crimes "he as a knight was deemed to have a duty to prevent", Hagenbach defended himself by arguing that he was only following orders
from the Duke of Burgundy
, Charles the Bold
, to whom the Holy Roman Empire had given Breisach.
History from 1900 to 1947
Court-martial of Breaker Morant
During the Second Boer War
, three Australian officers (Morant
) were charged and tried for a number of murders, including those of prisoners who had surrendered. A significant part of the defense was that they were acting under orders issued by Lord Kitchener
to "take no prisoners". However, these orders were verbal, were denied by Kitchener and his staff, and could not be validated in court, resulting in a guilty verdict against all three men.
German military trials after World War I
On June 4, 1921, the legal doctrine of superior orders was used during the German Military Trials
that took place after World War I
: One of the most famous of these trials was the matter of Lieutenant Karl Neumann, who was a U-boat
captain responsible for the sinking of the hospital ship the Dover Castle
Even though he frankly admitted to having sunk the ship, he stated that he had done so on the basis of orders supplied to him by the German Admiralty
and so he could not be held liable for his actions. The Reichsgericht
, then Germany's supreme court, acquitted him, accepting the defense of superior orders as a grounds to escape criminal liability.
Further, that very court had this to say in the matter of superior orders: "... that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors."
On the other hand, when the defendants could not reasonably claim that they did not know their orders were clearly illegal, the defense was ineffective. For instance, Lieutenants Dithmar and Boldt were ordered to fire on lifeboats, obeyed the order, and were found guilty in the same German Military Trials
. However, their sentence was later overturned on appeal.
Colorized image of Dostler tied to a stake before the execution
On October 8, 1945, Anton Dostler
was the first German general
to be tried for war crimes by a US military tribunal
at the Royal Palace
. He was accused of ordering the execution of 15 captured US soldiers of Operation Ginny II
in Italy in March 1944. He admitted to ordering the execution but said that he could not be held responsible because he was following orders from his superiors. The execution of the prisoners of war
in Italy, ordered by Dostler, was an implementation of Adolf Hitler
's Commando Order
of 1942, which required the immediate execution of all Allied commandos
, whether they were in proper uniforms or not, without trial if they were apprehended by German forces. The tribunal rejected the defense of Superior Orders and found Dostler guilty of war crimes. He was sentenced to death and executed by a firing squad
on December 1, 1945, in Aversa
The Dostler case became a precedent for the principle that was used in the Nuremberg Trials of German generals, officials, and Nazi leaders beginning in November 1945: using superior orders as a defense does not relieve officers from responsibility of carrying out illegal orders and their liability to be punished in court. The principle was codified in Principle IV
of the Nuremberg Principles
, and similar principles were found in sections of the Universal Declaration of Human Rights
Nuremberg Trials after World War II
Rare color photo of the trial at Nuremberg, depicting the defendants, guarded by American Military Police
Thus, under Nuremberg Principle IV
, "defense of superior orders" is not a defense for war crimes, although it might be a mitigating factor that could influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
During the Nuremberg Trials, Wilhelm Keitel
, Alfred Jodl
, and other defendants unsuccessfully used the defense. They contended that while they knew Adolf Hitler
's orders were unlawful, or at least had reason to believe they were unlawful, their place was not to question, but to obey. They claimed they were compelled to do so by the Führerprinzip
(leader principle) that governed the Nazi regime, as well as their own oath of allegiance to Hitler
. In most cases, the tribunal found that the defendants' offenses were so egregious that obedience to superior orders could not be considered a mitigating factor.
Before the trials, there was little consensus among the Allies as to what was to be done with the Nazi
war prisoners. Winston Churchill
was inclined to have the leaders 'executed as outlaws'.
The Soviets desired trials but wished there to be a presumption of guilt, as opposed to the procedural presumption of innocence that accompanies most Western
The German military law since 1872 said
that while the superior is ("solely") responsible for his order, the subordinate is
to be punished for his participation in it if he either transgressed the order on his own account, or if he knew the order to be criminal.
For many of their offenses (e.g., killing a non-combatant without trial) the Nazis did not bother to (or were too reluctant to) legalize them by a formal law, so, the prosecutors at Nuremberg could have argued that the defendants broke German law to begin with. However, this line of argumentation was infrequently used in the trials.
The trials gained so much attention that the "superior orders defense" has subsequently become interchangeable with the label "Nuremberg defense", a legal defense
that essentially states that defendants were "only following orders" ("Befehl ist Befehl", literally "an order is an order") and so are not responsible for their crimes.
However, US General Telford Taylor
, who had served as Chief Counsel for the United States during the Nuremberg trials, employed the term "Nuremberg defense" in a different sense. He applied it not to the defense offered by the Nuremberg defendants but to a justification put forward by those who refused to take part in military action (specifically America's involvement in the Vietnam War) that they believed to be criminal.
History from 1947 to 2000
Eichmann on trial in 1961
In the 1950s and 1960s the use of Befehlsnotstand
(English: Compulsion to obey orders), a concept in which a certain action is ordered which violates law but where the refusal to carry out such an order would lead to drastic consequences for the person refusing to carry out the order, as a defence in war crimes trials in Germany was quite successful as it protected the accused from punishment. With the formation of the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes
this changed as historical research by the organisation revealed that refusing an unlawful order did not result in punishment.
Israeli law since 1956
In 1957, the Israeli legal system established the concept of a 'blatantly illegal order' to explain when a military order (or in general, a security-related order) should be followed, and when an order must not
be followed. The concept is explained in 1957 by the infamous Kafr Qasim massacre
The Kafr Qasim trial considered for the first time the issue of when Israeli security personnel are required to disobey illegal orders. The judges decided that soldiers do not have the obligation to examine each and every order in detail as to its legality, nor were they entitled to disobey orders merely on a subjective feeling that they might be illegal. On the other hand, some orders were manifestly illegal, and these must be disobeyed. Judge Benjamin Halevy
's words, still much-quoted today, were that "The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: 'Prohibited!' Illegality that pierces the eye and revolts the heart, if the eye is not blind and the heart is not impenetrable or corrupt."
Captain (res.) Itai Haviv, a signatory of the 'courage to refuse' letter of 2002 tells of his unhappiness about his service for the Israeli Defense Forces
(IDF) and says "For 35 years a black flag was proudly hanging over our heads, but we have refused to see it". A translation note explains the "Black Flag" principle but adds "In the 45 years that passed since [the ruling], not even a single soldier was protected by a military court for refusing to obey a command because it was a 'black flag' command."
Following the Mỹ Lai massacre
in 1968, the defense was employed during the court martial of William Calley
. Some have argued that the outcome of the Mỹ Lai massacre court martial was a reversal of the laws of war that were set forth in the Nuremberg
and Tokyo War Crimes Tribunals
. Secretary of the Army Howard Callaway
was quoted in the New York Times
as stating that Calley's sentence was reduced because Calley believed that what he did was a part of his orders. Calley used the exact phrase "just following orders" when another American soldier, Hugh Thompson
, confronted him about the ongoing massacre.
In United States v. Keenan
, the accused was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese
citizen. The Court of Military Appeals
held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal". The soldier who gave the order, Corporal Luczko, was acquitted by reason of insanity.
The 1998 Rome Statute of the International Criminal Court
The provision containing the superior orders defense can be found as a defense to international crimes in the Rome Statute
of the International Criminal Court
. (The Rome Statute was agreed upon in 1998 as the foundational document of the International Criminal Court, established to try those individuals accused of serious international crimes.) Article 33, titled "Superior orders and prescription of law",
- The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
- The person was under a legal obligation to obey orders of the Government or the superior in question;
- The person did not know that the order was unlawful; and
- The order was not manifestly unlawful.
- For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
There are two interpretations[by whom?]
of this Article:
- This formulation, especially (1)(a), whilst effectively prohibiting the use of the Nuremberg defense in relation to charges of genocide and crimes against humanity, does however, appear to allow the Nuremberg defense to be used as a protection against charges of war crimes, provided the relevant criteria are met.
- Nevertheless, this interpretation of ICC Article 33 is open to debate: For example, Article 33 (1)(c) protects the defendant only if "the order was not manifestly unlawful". The "order" could be considered "unlawful" if we consider Nuremberg Principle IV to be the applicable "law" in this case. If so, then the defendant is not protected. Discussion as to whether or not Nuremberg Principle IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or lack of power.
History from 2000 to present
Legal proceedings of Jeremy Hinzman in Canada
An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.
Legal proceedings of Ehren Watada in the United States
In June 2006, during the Iraq War
, Ehren Watada
refused to go to Iraq on account of his belief that the Iraq war was a crime against peace
(waging a war of aggression
for territorial aggrandizement), which he believed could make him liable for prosecution under the command responsibility doctrine
. In this case, the judge ruled that soldiers, in general, are not responsible for determining whether the order to go to war itself is a lawful order – but are only responsible for those orders resulting in a specific application of military force, such as an order to shoot civilians, or to treat POWs inconsistently with the Geneva Conventions. This is consistent with the Nuremberg defense, as only the civilian and military principals of the Axis were charged with crimes against peace
, while subordinate military officials were not so charged.
It is often the case in modern warfare that while subordinate military officials are not held liable for their actions, neither are their superiors, as was the case with Calley's immediate superior Captain Ernest Medina.
Arguments for and against
Historical overview summary table
(For overview purposes, the below table attempts to capsulize much of the history in the above article. It is based on references above. To navigate to those supporting references and further information for each case, click on "see details" for each case.)
Note: Yellow rows indicate the use of the precise plea of Superior Orders in a war crimes trial - as opposed to events regarding the general concept of Superior Orders.
The superior orders defense is still used with the following rationale in the following scenario: An "order" may come from one's superior at the level of national
law. But according to Nuremberg Principle IV
, such an order is sometimes "unlawful" according to international
law. Such an "unlawful order" presents a legal dilemma from which there is no legal escape: On one hand, a person who refuses
such an unlawful order faces the possibility of legal punishment at the national level
for refusing orders. On the other hand, a person who accepts
such an unlawful order faces the possibility of legal punishment at the international level
(e.g. Nuremberg Trials
) for committing unlawful acts.
Nuremberg Principle II
responds to that dilemma by stating: "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law
does not relieve the person who committed the act from responsibility under international law."
The above scenario might present a legal
dilemma, but Nuremberg Principle IV
speaks of "a moral
choice" as being just as important as "legal" decisions: It states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral
choice was in fact possible to him".
In "moral choices" or ethical dilemmas
an ethical decision
is often made by appealing to a "higher ethic" such as ethics in religion
or secular ethics
. One such "higher ethic" found in many religions and in secular ethics, is the ethic of reciprocity
, or Golden Rule
. It states that one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others. Higher ethics
, such as those, could be used by an individual to solve the legal
dilemma presented by the superior orders defense.
Although messengers are not usually responsible for the message that their superior sends with them, the Babylonian Talmud
(3rd to 5th century corpus of Jewish law
) states, "There is no messenger in a case of sin." Joseph Telushkin
interprets the precept to mean that "if a person is sent to perform an evil act, he cannot defend his behavior by saying he was only acting as another's messenger. ... [T]he person who carries out the evil act bears responsibility for the evil he or she does."
This is because God's law (i.e. morality
) supersedes human law.
The common argument in this matter, is that every individual under orders should be bound by law to immediately relieve of command a superior officer who gives an obviously unlawful order to their troops. This represents a rational check to be put in place versus organizational command hierarchies.
- ^ See L.C. Green, Superior Orders in National and International Law, (A. W. Sijthoff International Publishing Co., Netherlands, 1976)
- ^ Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, (Transactions Publishers, New Brunswick, N.J., 1999).
- ^ See James B. Insco, Defense of Superior Orders Before Military Commissions, Duke Journal of Comparative and International Law, 13 DUKEJCIL 389 (Spring, 2003). Asserting in the author's view that a respondeat superior approach to superior orders is an "underinclusive extreme".
- ^ H. T. King Jr., The Legacy of Nuremberg, Case Western Journal of International Law, Vol. 34. (Fall 2002) at p. 335.e
- ^ a b The evolution of individual criminal responsibility under international law By Edoardo Greppi, Associate Professor of International Law at the University of Turin, Italy, International Committee of the Red Cross No. 835, p. 531–553, October 30, 1999.
- ^ Exhibit highlights the first international war crimes tribunal by Linda Grant, Harvard Law Bulletin.
- ^ a b An Introduction to the International Criminal Court William A. Schabas, Cambridge University Press, Third Edition
- ^ Command Responsibility The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005
- ^ Judge and master By Don Murray, CBC News, July 18, 2002.
- ^ The Perennial Conflict Between International Criminal Justice and Realpolitik Archived 2008-09-10 at the Wayback Machine February 10, 2006 Draft by M. Cherif Bassiouni -Distinguished Research Professor of Law and President, International Human Rights Law Institute, DePaul University College of Law, Presented March 14, 2006 as the 38th Henry J. Miller Distinguished Lecture, Georgia State University College of Law, and to appear in the Georgia State University Law Review
- ^ New York Times (June 5, 1921). "Free Man Who Sank a Hospital Ship; Leipsic Judges Acquit Neumann on the Ground That He Acted Under Orders. He Admitted Torpedoing. Prosecutor Demanded Acquittal, Calling Dover Castle Culpable in Carrying Wounded Soldiers". New York Times. Retrieved 10 April 2010.
- ^ Anon., "German War Trials: Judgement in Case of Commander Karl Neumann", The American Journal of International Law, Vol. 16, No. 4. (Oct., 1922) at pp. 704–708.
- ^ G. A. Finch, "Superior Orders and War Crimes", The American Journal of International Law, Vol. 15, No. 3. (Jul., 1921) at pp. 440–445.
- ^ "German War Trials: Judgment in Case of Lieutenants Dithmar and Boldt." The American Journal of International Law, vol. 16, no. 4, 1922, at pp. 708–724.
- ^ "Churchill: execute Hitler without trial". The Times. Times Newspapers Limited. 2006-01-01. Retrieved 2008-02-08.
- ^ K.C. Moghalu, Global Justice: The Politics of War Crime Trials, (Greenwood Publishers, 2006), sourced from Google Books.
- ^ Militär-Strafgesetzbuch für das Deutsche Reich, § 47. The difference to the present regulation, as found in the Wehrstrafgesetz § 5, is only marginal, at least as far as the letter of the law is concerned.
- ^ wenn ihm bekannt gewesen, daß der Befehl des Vorgesetzten eine Handlung betraf, welche ein bürgerliches oder militärisches Verbrechen oder Vergehen bezweckte, i.e., "... if it was known to him that the superior's order concerned an action that aimed at a civil or military felony or misdemeanor". According to general legal interpretation, "if he knew" means "unless he didn't know and had a valid excuse for not knowing".
- ^ Taylor, Telford (1970). Nuremberg and Vietnam: An American Tragedy. New York: The New York Times Group. p. 15. The claim that American intervention in Vietnam is itself an aggressive war and therefore criminal - the so-called 'Nuremberg defense' - has been put forward by draft card burners, draftees facing induction and soldiers about to be shipped to Vietnam.
- ^ The Secret in Their Eyes: Historical Memory, Production Models, and the Foreign Film Oscar (WEB EXCLUSIVE) Archived 2012-01-27 at the Wayback Machine Matt Losada, Cineaste Magazine, 2010
- ^ CONADEP, Nunca Más Report, Chapter II, Section One:Advertencia,  (in Spanish)
- ^ Atrocities in Argentina (1976–1983) Holocaust Museum Houston
- ^ Kellerhoff, Sven Felix (15 July 2015). "Hatten SS-Mitglieder damals wirklich "keine Wahl"?" [Did SS members really have no choice?]. Die Welt (in German). Retrieved 17 October 2018.
- ^ M. R. Lippman, Humanitarian Law: The Development and Scope of the Superior Orders Defense, Penn State International Law Review, Fall 2001.
- ^ Leora Y. Bilsky, Transformative Justice : Israeli Identity on Trial (Law, Meaning, and Violence), University of Michigan Press, 2004, ISBN 0-472-03037-X, pp169–197, 310-324.
- ^ 
- ^ Marshall, Burke; Goldstein, Joseph (2 April 1976). "Learning From My Lai: A Proposal on War Crimes". The New York Times. p. 26.
- ^ Rod Powers. "Military Orders To Obey or Not to Obey?". About.com: US Military. Retrieved 16 June 2010.
- ^ Rome Statute of the International Criminal Court (12 July 1999). "Rome Statute of the International Criminal Court; Part 3: General Principles of Criminal Law; Article 33: Superior orders and prescription of law". Rome Statute of the International Criminal Court. Retrieved 21 March 2010.
- ^ a b Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto's Now Magazine. Archived from the original on 2011-06-05. Retrieved 2008-06-02.
- ^ "Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420". Office of the Commissioner for Federal Judicial Affairs. pp. (see Held, Para. (1)). Archived from the original on 2009-02-16. Retrieved 2008-06-16.
- ^ Hinzman v. Canada Federal Court decision. Paras (157) and (158). Accessed 2008-06-18
- ^ Roman Goergen (Feb 23, 2011). "Sanctuary Denied". In These Times. Retrieved 6 March 2011.
- ^ CBC News (2007-11-15). "Top court refuses to hear cases of U.S. deserters". CBC News. Retrieved 2008-06-02.
- ^ "Supreme Court of Canada - Decisions - Bulletin of November 16, 2007, (See Sections 32111 and 32112)". Archived from the original on February 16, 2009.
- ^ Soldier's Iraq war stance backed: Watada has right to refuse to go, retired officer says, Seattle Post-Intelligencer, June 20, 2006.
- ^ Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law HTML version by Allison Marston Danner and Jenny S. Martinez, September 15, 2004
- ^ "Retired Site - PBS Programs - PBS".
- ^ Command, superior and ministerial responsibility by Robin Rowland, CBC News Online, May 6, 2004
- ^ International Committee of the Red Cross (ICRC) References Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950: Introduction
- ^ Kiddushin 42b. Qtd. in Telushkin, The Book of Jewish Values, 330.
- ^ Telushkin, Joseph. The Book of Jewish Values: A Day-By-Day Guide to Ethical Living. New York: Bell Tower, 2000. p. 330
- ^ See, e.g., Superior Growers, 982 F.2d at 177–78; United States v. Campa, 679 F.2d 1006, 1013 (lst Cir. 1982).
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