The
Nuremberg Defense is a legal defense that essentially states that the defendant was "
only following orders" ("Befehl ist Befehl", literally "order is order") and is therefore not responsible for his crimes. The defense was most famously employed during the
Nuremberg TrialsThe Nuremberg trials were a series of trials, or tribunals, most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany after its defeat in World War II....
, after which it is named.
Before the end of
World War IIWorld War II, or the Second World War , was a global military conflict which involved a majority of the world's nations, including all great powers, organized into two opposing military alliances: the Allies and the Axis...
, the Allies suspected such a defense might be employed, and issued the
London Charter of the International Military TribunalThe London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
(IMT), which specifically stated that following an unlawful order is not a valid defense against charges of
war crime.War crimes are "violations of the laws or customs of war"; including "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns...
s.
Thus, under
Nuremberg Principle IVThe Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to recognize the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.-...
, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty.
The
Nuremberg Defense is a legal defense that essentially states that the defendant was "
only following orders" ("Befehl ist Befehl", literally "order is order") and is therefore not responsible for his crimes. The defense was most famously employed during the
Nuremberg TrialsThe Nuremberg trials were a series of trials, or tribunals, most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany after its defeat in World War II....
, after which it is named.
Before the end of
World War IIWorld War II, or the Second World War , was a global military conflict which involved a majority of the world's nations, including all great powers, organized into two opposing military alliances: the Allies and the Axis...
, the Allies suspected such a defense might be employed, and issued the
London Charter of the International Military TribunalThe London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
(IMT), which specifically stated that following an unlawful order is not a valid defense against charges of
war crime.War crimes are "violations of the laws or customs of war"; including "murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps", "the murder or ill-treatment of prisoners of war", the killing of hostages, "the wanton destruction of cities, towns...
s.
Thus, under
Nuremberg Principle IVThe Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to recognize the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.-...
, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty.
Nuremberg Principle IVThe Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to recognize the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.-...
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."
This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders, and one who accepts one will probably be jailed for committing unlawful acts, in a
Catch-22Catch-22 is a term coined by Joseph Heller in his novel Catch-22, describing a paradox in rules, regulations, procedures, or situations in which one has knowledge of being or becoming a victim but has no control over it occuring.-Logic:...
dilemma.
Uses
Wilhelm KeitelWilhelm Bodewin Gustav Keitel was a German field marshal . As head of the Oberkommando der Wehrmacht and de facto war minister, he was one of Germany's most senior military leaders during World War II...
,
Alfred JodlAlfred Jodl was a German military commander, attaining the position of Chief of the Operations Staff of the Armed Forces High Command during World War II, acting as deputy to Wilhelm Keitel. At Nuremberg he was tried, sentenced to death and hanged as a war criminal...
and other defendants of the
Nuremberg trialsThe Nuremberg trials were a series of trials, or tribunals, most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany after its defeat in World War II....
unsuccessfully used the defense during their trials. The defense was employed during the court martial of
William CalleyWilliam Laws Calley is a convicted American war criminal. He was the U.S. Army officer found guilty of ordering the My Lai Massacre on March 16, 1968, during the Vietnam War.-Early life:...
following the
My Lai MassacreThe My Lai Massacre was the mass murder conducted by a unit of the U.S. Army on March 16, 1968 of 347 to 504 unarmed citizens in South Vietnam, all of whom were civilians and a majority of whom were women, children, and elderly people....
in 1968.
Some have argued that the outcome of the
My Lai MassacreThe My Lai Massacre was the mass murder conducted by a unit of the U.S. Army on March 16, 1968 of 347 to 504 unarmed citizens in South Vietnam, all of whom were civilians and a majority of whom were women, children, and elderly people....
courts 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 CallawayHoward Hollis "Bo" Callaway is a businessman and former politician from the state of Georgia.Callaway was born in LaGrange west of Atlanta. He attended Georgia Tech and graduated from the United States Military Academy at West Point, New York...
was quoted in the
New York Times as stating that Calley's sentence was reduced because Calley honestly believed that what he did was a part of his orders — a rationale that stands in direct contradiction of the standards set at Nuremberg and Tokyo, where German and Japanese soldiers were executed for similar acts.
Ehren WatadaEhren Watada is a First Lieutenant of the United States Army who in June, 2006, refused to deploy to Iraq for his unit's assigned rotation to Operation Iraqi Freedom. Watada said he believed the war to be illegal and that, under the doctrine of command responsibility, it would make him party to...
refused to go to Iraq on account of his belief that the Iraq war was a
crime against peaceA crime against peace, in international law, refers to "planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing"...
(waging a
war of aggressionA war of aggression is a military conflict waged absent the justification of self-defense. Waging such a war of aggression is a crime under the customary international law...
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.
In 1996, the Nuremberg Defense was successfully used by
Erich PriebkeErich Priebke was a Hauptsturmführer in the Waffen SS. In 1996 he was convicted of war crimes in Italy, for participating in the massacre at the Ardeatine caves in Rome, on March 24, 1944...
, although the verdict was appealed and he was later convicted. It was used with varying degrees of success by those involved in the
Hostages TrialThe Hostages Trial was held from8 July, 1947 until 19 February, 1948 and was the seventh of the twelve trials for war crimes the U.S. authorities held in their occupation zone in Germany in Nuremberg after the end of World War II. These twelve trials were all held before U.S...
.
Based on this principle
international lawPublic international law concerns the structure and conduct of sovereign states, analogous entities, such as the Holy See, and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of
command responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of war crimes....
.
Uses in Canada
Nuremberg Principle IV, and its reference to an individual’s responsibility, was at issue in
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
in the case of
Hinzman v. Canada. Jeremy HinzmanJeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
was a U.S. Army deserter who claimed
refugeeUnder the United Nations Convention Relating to the Status of Refugees, a refugee is a person who owing to a well-founded fear of being persecuted on account of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality,...
status in Canada as a
conscientious objectorA conscientious objector is an individual who, on religious, moral or ethical grounds, refuses to participate as a combatant in war or, in some cases, to take any role that would support a combatant organization armed forces. In the first case, conscientious objectors may be willing to accept...
, one of many Iraq War resisters. Hinzman's lawyer,
Jeffry HouseJeffry House is a lawyer in Toronto, Ontario, Canada. He is most notably known for his representation of fugitive American soldiers and Native protesters in Canadian Courts and Tribunals.- American soldiers :Mr...
had previously raised the issue of the
legality of the Iraq WarThe legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a small coalition of other countries launched the 2003 invasion of Iraq...
as having a bearing on their case. The
Federal CourtThe Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice
Anne L. MactavishAnne L. Mactavish, a Canadian Federal Court trial judge, was born in Montreal, Quebec. Her education was at Bishop's University, University of New Brunswick and University of Ottawa. She was called to the Bar of Ontario in 1982. She became an Associate and Partner at Perley-Robertson, Panet,...
addressed the issue of personal responsibility:
“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.”
On Nov 15, 2007, a Coram of the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system...
made of Justices
Michel BastaracheJ. E. Michel Bastarache CC is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
,
Rosalie AbellaThe Honourable Madam Justice Rosalie Silberman Abella, FRSC is a Canadian jurist. She was appointed in 2004 to the Supreme Court of Canada, becoming the first Jewish woman to sit on the Canadian Supreme Court bench....
, and
Louise CharronThe Honourable Madam Justice Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
refused an application to have the Court hear the case on appeal, without giving reasons.
“... in written arguments to the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system...
,
Mr. HouseJeffry House is a lawyer in Toronto, Ontario, Canada. He is most notably known for his representation of fugitive American soldiers and Native protesters in Canadian Courts and Tribunals.- American soldiers :Mr...
pointed out that although our courts have so far refused to grant refugee status to Americans soldiers who are deserting military duty out of moral objection to the
war in IraqThe Iraq War, also known as the Occupation of Iraq or Operation Iraqi Freedom, is an ongoing military campaign which began on March 20, 2003 with the invasion of Iraq by a multinational force led by troops from the United States and the United Kingdom.Prior to the war, the governments of the United...
, in 1995 the
Federal Court of AppealThe Federal Court of Canada is a defunct national court of Canada set up to resolve some types of disputes arising under the central government's legislative jurisdiction. It consisted of two divisions, a Trial Division and an Appeal Division...
granted refugee status to a deserter from
Saddam Hussein's armed incursion into KuwaitThe Invasion of Kuwait, also known as the Iraq-Kuwait War, and perhaps more appropriately as Iraqi abolition of Kuwait was a major conflict between the Republic of Iraq and the State of Kuwait which resulted in the seven-month long Iraqi occupation of Kuwait which subsequently led to direct...
, on the basis that he should not be compelled to take part in an illegal war.
"The courts are taking one stance for
Saddam HusseinSaddam Hussein Abd al-Majid al-Tikriti was the President of Iraq from 16 July 1979 until 9 April 2003...
's soldiers and another one entirely for American soldiers," Mr. House said.
The Rome Statute of the International Criminal Court
A version of the Nuremberg Defense can be found as a defense to international crimes in the Rome Statute of the
International Criminal CourtThe International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .The court came into being on 1 July 2002 — the...
. 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 states:
1. 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:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
This formulation, whilst effectively prohibiting the use of the Nuremberg Defense in relation to charges of genocide and crimes against humanity, allows the defense to be used against charges of war crimes, provided the relevant criteria are met.
In popular culture
In the
Christopher BuckleyChristopher Taylor Buckley is an American political satirist and the author of novels including God Is My Broker, Thank You for Smoking, Little Green Men, The White House Mess, No Way to Treat a First Lady, Wet Work, Florence of Arabia, Boomsday, Supreme Courtship, and, most recently, Losing Mum...
novel
Thank You for Smoking and its
film adaptationThank You for Smoking is a 2006 comedy-drama film satire directed by Jason Reitman and produced by David O. Sacks. It is based on the 1994 novel of the same name by Christopher Buckley....
, the main character Nick Naylor justifies his career to a reporter by telling her that "Everybody has a
mortgageA mortgage is the transfer of an interest in property to a lender as a security for a debt - usually a loan of money. While a mortgage in itself is not a debt, it is the lender's security for a debt...
to pay," and referring to his response as the "
YuppieYuppie is a 1980s and early 1990s term for financially secure, upper-middle class young people in their 20s and early 30s...
Nuremberg Defense."
The play and film
A Few Good MenA Few Good Men is a play by Aaron Sorkin, first produced on Broadway by David Brown in 1989. Sorkin adapted his work into a screenplay for a 1992 film directed by Rob Reiner, produced by Brown and starring Tom Cruise, Jack Nicholson, and Demi Moore....
revolves around the question of the culpability of officers giving orders which they knew to be illegal, and of the soldiers under their command for following such orders, when such orders resulted in unintended and unforeseen consequences.
See also
- Command responsibility
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of war crimes....
- Peter von Hagenbach
Peter von Hagenbach was born into a Alsace-Bourgogne family. They were originally from Hagenbach and owned a castle there....
- Milgram Experiment
The Milgram experiment was a series of social psychology experiments conducted by Yale University psychologist Stanley Milgram, which measured the willingness of study participants to obey an authority figure who instructed them to perform acts that conflicted with their personal conscience...
- Nuremberg Principles
The Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to recognize the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.-...
- Superior Orders
Superior Orders is, in essence, the plea that a soldier not be held guilty for crimes committed during the course of war due to the orders of a superior officer. The superior orders defense is similar to the doctrine of respondeat superior in tort law where a superior is held liable for the...
- Lawful orders
In the armed forces of the United States, officers are expected to issue orders to subordinates, in order to carry out assigned duties. These orders are assumed to be lawful In the armed forces of the United States, officers (both commissioned and non-commissioned) are expected to issue orders to...
External links