Superior orders, also known as just following orders or the Nuremberg defense, is a plea in a court of law that a person, whether civilian, military or police, should not be considered guilty of committing crimes ordered by a superior officer or official.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). It is regarded as a complement to command responsibility.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".
One noted use of this plea or defense was by the accused in the 1945–1946 Nuremberg trials. These were a series of military tribunals held by the main victorious Allies of World War II to prosecute, among others, prominent members of the political, military and economic leadership of the defeated Nazi Germany. Under the London 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.
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 the 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, pp. 531–53, October 30, 1999.Exhibit highlights the first international war crimes tribunal by Linda Grant, Harvard Law Bulletin.
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 that "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,The Perennial Conflict Between International Criminal Justice and Realpolitik 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 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
1900–1947
Court-martial of Breaker Morant
During the Second Boer War, four Australian officers (Breaker Morant, Peter Handcock, Henry Picton, and George 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 by Lord 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 modern Australia as a miscarriage of justice, the defendants' de facto commanding officer, Captain Alfred Taylor, whose own actions are widely considered to have been much more brutal and inhumane, was also tried but was acquitted on all charges.
German military trials after World War I On June 4, 1921, the legal limits of superior orders were tested during the Leipzig War Crimes Trials that tried German military veterans for committing alleged war crimes in World War I in a civilian court after the Treaty of Versailles. One of the most famous of these trials remains that of Kapitänleutnant Karl Neumann of SM UC-67; the U-boat Officer Commanding who torpedoed and sank the British hospital ship the Dover Castle. Even though Neumann frankly admitted to having sunk the ship, he stated that he had done so on the basis of authorisation supplied by the German Admiralty. The Imperial German Government had accused the Allies of violating Articles X and XI of the Hague Convention of 1907 by using hospital ships for military purposes, such as transporting healthy troops, and the Imperial German Navy had accordingly decreed on 19 March 1917 that officers commanding individual U-boats could choose to fire upon Allied hospital ships under certain conditions. The Reichsgericht, then Germany's supreme court, acquitted Lt.-Capt. Neumann, accepting the defense that he had believed the sinking to be a lawful act."German War Trials: Judgement in Case of Commander Karl Neumann", The American Journal of International Law, Vol. 16, No. 4. (October 1922), pp. 704–08. Further, the court stated "that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors".G. A. Finch, "Superior Orders and War Crimes", The American Journal of International Law, Vol. 15, No. 3. (July 1921), pp. 440–45.
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 the Allied 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 obeying criminal orders, this defense proved ineffective. For instance, following the sinking of the Canadian hospital ship HMHS Llandovery Castle, Oberleutnants zur See Ludwig Dithmar and John Boldt of SM U-86 were ordered to open fire with the deck 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-1945 German 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."German War Trials: Judgment in Case of Lieutenants Dithmar and Boldt". The American Journal of International Law, vol. 16, no. 4, 1922, pp. 708–24.
According to American historian Alfred 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." (See Victor'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 of Robert H. Jackson, a Justice of the United States Supreme Court, who was appointed Chief Prosecutor at the Nuremberg trials.
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 1945–46, 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:
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 (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.