Superior orders, also known asjust following orders orthe Nuremberg defense, is aplea in a court of law that a person, whether civilian, military or police, should not be considered guilty of committing crimes ordered by asuperior officer orofficial.[1][2] It is regarded as a complement tocommand responsibility.[3]
One noted use of this plea ordefense was by the accused in the 1945–1946Nuremberg trials. These were a series ofmilitary tribunals held by the main victoriousAllies ofWorld War II to prosecute, among others, prominent members of the political, military and economic leadership of the defeatedNazi Germany. Under theLondon Charter of the International Military Tribunal that established them, the trials determined that the defense of superior orders was no longer enough to escape punishment but merely enough to lessen it.[4]
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.
Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, withinconsistent rulings, up to the final ruling ofInternational Criminal Court in theProsecutor vNtaganda case.[5]
In 1474, in the trial ofPeter von Hagenbach by an ad hoc tribunal of theHoly Roman Empire, the first known "international" recognition of commanders' obligations to act lawfully occurred.[6][7]
Specifically, Hagenbach was put on trial for atrocities committed under his command but not by him directly, during the occupation ofBreisach. This was the earliest modern European example of the doctrine ofcommand responsibility.[8][9] Since he was convicted for crimes that "he as a knight was deemed to have a duty to prevent", Hagenbach defended himself by arguing that he was only following orders[6][10] from theDuke of Burgundy,Charles the Bold, to whom the Holy Roman Empire had given Breisach,[11] but this defense was rejected and he was convicted ofwar crimes and beheaded.[8]
During theSecond Boer War, four Australian officers (Breaker Morant,Peter Handcock, Henry Picton, andGeorge Witton) were indicted and tried for a number of murders, including those of prisoners who had surrendered and been disarmed. A significant part of the defense was that they were acting under orders issued byLord Kitchener to "take no prisoners". However, these alleged orders were only issued verbally, were denied by Kitchener and his staff, and could not be validated in court. Furthermore, the crown prosecutor argued that even if such orders existed, they were "illegal orders" and was sustained by the court, resulting in a guilty verdict against all four men. In a ruling still reviled by some in modernAustralia as amiscarriage of justice, the defendants' de facto commanding officer, CaptainAlfred Taylor, whose own actions are widely considered to have been much more brutal and inhumane, was also tried but was acquitted on all charges.
On June 4, 1921, the legal limits of superior orders were tested during theLeipzig War Crimes Trials that tried German military veterans for committing allegedwar crimes in World War I in a civilian court after theTreaty of Versailles. One of the most famous of these trials remains that ofKapitänleutnant Karl Neumann ofSMUC-67; theU-boatOfficer Commanding who torpedoed and sank the Britishhospital ship theDover Castle.[12] Even though Neumann frankly admitted to having sunk the ship, he stated that he had done so on the basis of authorisation supplied by theGerman Admiralty. The Imperial German Government had accused theAllies of violating Articles X and XI of theHague Convention of 1907 by using hospital ships for military purposes, such as transporting healthy troops,[13] and theImperial German Navy had accordingly decreed on 19 March 1917 thatofficers commanding individual U-boats could choose to fire upon Allied hospital ships under certain conditions. TheReichsgericht, then Germany's supreme court, acquitted Lt.-Capt. Neumann, accepting the defense that he had believed the sinking to be a lawful act.[14] Further, the court stated "that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors".[15]
Many other German veterans similarly facing prosecution for war crimes at Leipzig were also acquitted by either alleging ignorance of the law or citing the superior orders defense, creating immense dissatisfaction among theAllied news media and public. On the other hand, when the defendants at Leipzig could not reasonably claim that they did not know at the time that they were obeyingcriminal orders, this defense proved ineffective. For instance, following the sinking of the Canadian hospital shipHMHSLlandovery Castle,Oberleutnants zur See Ludwig Dithmar and John Boldt ofSMU-86 were ordered to open fire with thedeck gun on the unarmed shipwreck survivors and obeyed the order. They were both found guilty and sentenced, despite the very deep stigma and humiliation involved for a military officer in pre-1945German culture, to serve their terms of incarceration in a civilian prison. However, the verdict was later overturned on appeal, on the grounds that their fugitive former commanding officer,Helmut Brümmer-Patzig, bore the lion's share of the guilt.[16]
According to American historianAlfred de Zayas, however, "generally speaking, the German population took exception to these trials, especially because the Allies were not similarly bringing their own soldiers to justice."[17] (SeeVictor's justice.)
Even so, dissatisfaction with the Leipzig trials is thought to be one of the main causes for the specific nullification of the superior orders defense in the August 8, 1945,London Charter of the International Military Tribunal. The removal has been attributed to the actions ofRobert H. Jackson, a Justice of theUnited States Supreme Court, who was appointed Chief Prosecutor at theNuremberg trials.
On October 8, 1945,Anton Dostler was the firstGerman general to be tried for war crimes by a USmilitary tribunal at theRoyal Palace of Caserta. He was accused of ordering the execution of 15 captured US soldiers ofOperation 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 theprisoners of war in Italy, ordered by Dostler, was an implementation ofAdolf Hitler'sCommando Order of 1942, which required the immediate execution of allAlliedcommandos, 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 andexecuted by a firing squad on December 1, 1945, inAversa.
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 inPrinciple IV of theNuremberg Principles, and similar principles are in the 1948Universal Declaration of Human Rights.
In 1945–46, during theNuremberg trials the issue of superior orders again arose. Before the end of World War II, the Allies suspected such a defense might be employed and issued theLondon Charter of the International Military Tribunal (IMT), which explicitly stated that following an unlawful order is not a valid defense against charges ofwar crimes.
Thus, underNuremberg 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 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 theFührerprinzip (leader principle) that governed the Nazi regime, as well as their ownoath 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 Allied consensus about prosecuting Nazi war prisoners.Winston Churchill was inclined to have the leaders "executed as outlaws".[18] The Soviets desired trials but wished there to be apresumption of guilt.[19]
The German military law since 1872 said[20] that while the superior is ("solely") responsible for his order, the subordinateis 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.[21] The Nazis did not bother (or were too reluctant) to formalize many of their offenses (e.g., killing a non-combatant without trial), so the prosecutors at Nuremberg could have argued that the defendants broke German law to begin with. However, this line of argument was infrequently used.
The trials gained so much attention that the "superior orders defense" has subsequently become interchangeable with the label "Nuremberg defense", alegal 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 GeneralTelford 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.[22]
The defense of superior orders again arose in the1961 trial of Nazi war criminalAdolf Eichmann inIsrael, as well as the trial ofAlfredo Astiz ofArgentina, who was responsible for many disappearances and kidnappings that took place during itslast civil-military dictatorship (1976–1983). The dictators forcedstate-sponsored terrorism upon the population,[23] resulting in what (to several sources) amounted togenocide.[24][25]
The 1950s and 1960s saw the defense ofBefehlsnotstand (English:compulsion to obey orders), a concept in which a certain action is ordered which violates law but where the refusal to carry it out would lead to drastic consequences for the person refusing. This was quite successful in war crimes trials in Germany.[clarification needed] With the formation of theCentral Office of the State Justice Administrations for the Investigation of National Socialist Crimes this changed, as its research revealed that refusing an unlawful order did not result in punishment.[26]
In 1957, the Israeli legal system established the concept of a "blatantly illegal order" to explain when a military (or security-related) order should be followed, and when itmust not be followed. The concept was explained in 1957 in theKafr Qasim massacre ruling. The 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. JudgeBenjamin 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."[27][28]
Captain (res.) Itai Haviv, a signatory of the 'courage to refuse' letter of 2002, told of his unhappiness about his service for theIsraeli Defense Forces (IDF) and said "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."[29]
Following theMỹ Lai massacre in 1968, the defense was employed during the court martial ofWilliam Calley. Some have argued that the outcome of the Mỹ Lai trial was a reversal of thelaws of war that were set forth in theNuremberg andTokyo War Crimes Tribunals.[30]Secretary of the ArmyHoward Callaway was quoted in theNew 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.
InUnited States v. Keenan, the accused was found guilty of murder after he obeyed an order to shoot and kill an elderlyVietnamese citizen. TheCourt 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.[31]
The Canadian government prosecuted Hungarian Nazi collaboratorImre Finta under its war crimes legislation in 1987. He was accused of organizing the deportation of over 8,000 Jews to Nazi death camps. He was acquitted on the defence that he was following the orders of a superior. The Canadian courts that accepted that verdict are the only ones in the world that recognize that legal defence.[32]
TheRome Statute was agreed in 1998 as the foundation document of theInternational Criminal Court, established to try those accused of serious international crimes. Article 33, titled "Superior orders and prescription of law",[33] states:
- 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.
Nuremberg Principle IV, and its reference to an individual's responsibility, was at issue inCanada in the case ofHinzman v. Canada.Jeremy Hinzman was aU.S. Armydeserter who claimedrefugee status in Canada as aconscientious objector, one ofmany Iraq War resisters. Hinzman's lawyer, (at that timeJeffry House), had previously raised the issue of thelegality of the Iraq War as having a bearing on their case. TheFederal Court ruling was released on March 31, 2006, and denied the refugee status claim.[34][35] In the decision, JusticeAnne L. Mactavish 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.[34][36][37]
On November 15, 2007, a quorum of theSupreme Court of Canada made of JusticesMichel Bastarache,Rosalie Abella, andLouise Charron refused an application to have the Court hear the case on appeal, without giving reasons.[38][39]
In June 2006, during theIraq War,Ehren Watada refused to go to Iraq on account of his belief that the war was acrime against peace (waging awar 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 is itself a lawful order – but are only responsible for those orders resulting in a specific application of military force, such as shooting civilians or treating 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.[40] 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.
Based on this principle,international law developed the concept of individual criminal liability for war crimes, which resulted in the current doctrine of command responsibility.[41][42][43]
On February 28, 2022, during theRussian invasion of Ukraine, Russian SergeantVadim Shishimarin shot and killed unarmed civilian Oleksandr Shelipov, a 62 year old Ukrainian man. His trial started on 13 May 2022, and on Wednesday 18 May, Shishimarin pleaded guilty to the killing. On Friday 20 May, Shishimarin's defense lawyer asked for his client to be acquitted of war crimes.[44] He argued that Shishimarin had intended not to kill but only to carry out the order formally, which Shishimarin had refused twice before succumbing to pressure from other soldiers. He further argued that the shots were unaimed, fired from a moving vehicle with a faulty tire, and only one bullet out of the burst hit.[45][46] Shishimarin was sentenced to life in prison, reduced to 15 years on appeal.[47]
| Date | Preceding context | Jurisdiction / decisionmaker | Defendant(s) or case(s) | [found] "responsible" despite superior orders | [found] "not responsible" because of superior orders |
|---|---|---|---|---|---|
| 1474 | the occupation ofBreisach | ad hoc tribunal of theHoly Roman Empire | Peter von Hagenbach | yes(see details) | |
| 1921 | World War I | Germany's Supreme Court (trials afterWorld War I) | Lieutenant Karl Neumann and others | yes(see details) | |
| 1945 | World War II | Nuremberg trials afterWorld War II | all defendants | yes(see details) | |
| 1998 | preparation for future cases | Rome Statute of theInternational Criminal Court | future cases under Article 33 of theRome Statute of theInternational Criminal Court | in cases ofgenocide and possibly other cases(see details) | possibly in cases other thangenocide(see details) |
| 2006 | Iraq War | Justice Anne L. Mactavish –Federal Court (Canada) | Jeremy Hinzman (refugee applicant) | equivalent to yes(see details) | |
| 2022 | Russian invasion of Ukraine | Serhiy Agafonov | Vadim Shishimarin | yes |
Note: Yellow rows indicate the use of theprecise plea of superior orders in a war crimes trial, as opposed to events regarding thegeneral concept of superior orders.
The superior orders defense is still used[citation needed] with the following rationale in the following scenario: An "order" may come from one's superior at the level ofnational law. But according to Nuremberg Principle IV, such an order is sometimes "unlawful" according tointernational law. Such an "unlawful order" presents a legal dilemma from which there is no legal escape: On one hand, a person whorefuses such an unlawful order faces the possibility of legal punishmentat the national level. On the other hand, a person whoaccepts such an unlawful order faces the possibility of legal punishmentat the international level.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."[48]
This might present alegal dilemma, but Nuremberg Principle IV speaks of "amoral choice" as being just as important as legal decisions: "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 amoral choice was in fact possible to him".
In moral choices orethical dilemmas a decision is often made by appealing to a "higher ethic". One found in many religions and in secular ethics is theethic of reciprocity, orGolden Rule. It states that one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others.
Although messengers are not usually responsible for the content of messages, theBabylonian Talmud (3rd to 5th century corpus ofJewish law) states, "There is no messenger in a case of sin."[49]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."[50] This is because God's law (i.e.morality) supersedes human law.
Another argument against the use of the superior orders defense is that it does not follow the traditional legal definitions and categories established undercriminal law, where aprincipal is any actor who is primarily responsible for a criminal offense.[51] Such an actor is distinguished from others who may also be subject to criminal liability asaccomplices,accessories orconspirators. (See also the various degrees of liability:absolute liability,strict liability, andmens rea.)
The common argument is that every individual under orders should be bound by law to immediately relieve of command an officer who gives an obviously unlawful order to their troops.[citation needed] This represents a rational check against organizational command hierarchies.
Nuremberg Principle IV, theinternational law that counters the superior orders defense, is legally supported by thejurisprudence found incertain articles in the Universal Declaration of Human Rights that deal indirectly with conscientious objection. It is also supported bythe principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status, which was issued by the Office of theUnited Nations High Commissioner for Refugees (UNHCR). Those principles deal with the conditions under whichconscientious objectors can apply for refugee status in another country if they face persecution in their own for refusing to participate in an illegal war.
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.