Superior Orders

Superior orders, also known as the Nuremberg defense or just following orders, is a plea in a court of law that a person, whether a member of the military, law enforcement, a firefighting force, or the civilian population, should not be considered guilty of committing actions that were ordered by a superior officer or official.

The superior orders plea is often regarded as the complement to command responsibility.

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.

Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with inconsistent rulings, up to the final ruling of International Criminal Court in the ''Prosecutor v Ntaganda'' case.

History

Before 1500

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.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. Hagenbach offered the defense that he was just following orders, but this defense was rejected and he was convicted of war crimes and beheaded.An Introduction to the International Criminal Court
William A. Schabas, Cambridge University Press, Third Edition

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.Command Responsibility
The Mens Rea Requirement, By Eugenia Levine, Global Policy Forum, February 2005 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 ordersJudge and master
By Don Murray, CBC News, July 18, 2002. from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman Empire had given Breisach.

1900–1947

Court-martial of Breaker Morant

During the Second Boer War, three Australian officers (Morant, Handcock and Witton) 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, the court stated "... that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors."

Many accused of war crimes were acquitted on a similar defense, creating immense dissatisfaction among the Allies. This is thought to be one of the main causes for the specific removal of this defense in the August 8, 1945 London Charter of the International Military Tribunal. The removal has been attributed to the actions of Robert H. Jackson, a Justice of the United States Supreme Court, who was appointed Chief Prosecutor at the Nuremberg trials.

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 overturned on appeal.

Dostler case

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 of Caserta. 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 are in the 1948 Universal Declaration of Human Rights.

Nuremberg Trials after World War II

In 1945 and 1946, during the Nuremberg 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 the London Charter of the International Military Tribunal (IMT), which explicitly stated that following an unlawful order is not a valid defense against charges of war crimes.

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 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 Allied consensus about prosecuting 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.

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. 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.

"Nuremberg defense"

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.

1947–2000

The defense of superior orders again arose in the 1961 trial of Nazi war criminal Adolf Eichmann