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Superior orders, often known as the Nuremberg defense, lawful orders or by the German phrase "Befehl ist Befehl" ("orders are orders"), is a plea in a court of law that a person, whether a member of the armed forces or a civilian, not be held guilty for actions which were ordered by a superior officer or a public 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 1945–46 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 Allied forces after World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. It was during these trials, under the London Charter of the International Military Tribunal which set them up, that the defense of superior orders was no longer considered enough to escape punishment; but merely enough to lessen punishment.
Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with a notable lack of consistency in various rulings.
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 us understand the evolution of the specific plea of superior orders and the history of its usage.
History before 1900
The trial of Peter von Hagenbach
See also: Command responsibility
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 and beheaded.
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 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. This defense was rejected.
History from 1900 to 2000
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 that being so, he could not be held liable for his actions. The LeipzigSupreme Court (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."
Many accused of war crimes were acquitted on a similar defense, creating immense dissatisfaction amongst the Allies. This has been 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. This 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.
The Dostler case
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 U.S. military tribunal at the Royal Palace inCaserta. He was accused of ordering the execution of 15 captured U.S. soldiers of Operation Ginny II in Italy in March 1944. He admitted into ordering the execution but said that he could not be held responsible because he was just following orders from his superiors. The execution of 15 U.S. prisoners of war in Italy ordered by Dostler was an implementation of Hitler's Commando Order of 1942 which required the immediate execution of all Allied commandos, whether in proper uniforms or not, without trial if 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 squadon December 1, 1945, in Aversa.
The Dostler case became a precedent for the principle, used in the Nuremberg Trials of German generals, officials, and Nazi leaders beginning in November 1945, that 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. This 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
See also: Nuremberg Trials
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 specifically 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 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.
(Before the trials, there was little consensus amongst 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 westerncriminal trials.)
The "Nuremberg Defense"
These trials gained so much attention that the "superior orders defense" has subsequently become interchangeable with the label, "Nuremberg defense". This is a legal defense that essentially states that the defendant was "only following orders" ("Befehl ist Befehl", literally "an order is an order") and is therefore not responsible for his or her crimes.
However, U.S. 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. Used in this way, "Nuremberg defense" refers not to the position that "an order is an order", but rather to the opposing (and rebutting) view that only lawful orders are binding. (This latter use of the term has apparently fallen into disuse, perhaps in part as a result of the United States' subsequent abolition of the draft.)
History from 1947 to 2000
The defense of superior orders again arose in the 1961 trial of Nazi war criminal Adolf Eichmann in Israel, as well as the trial of Alfredo Astiz of Argentina, the latter responsible for a large number of disappearances and kidnappings that took place during that country's Dirty War.
Eichmann on trial in 1961
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 ruling.
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. 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!'." (Lippman, Bilsky).
The notion of 'blatantly illegal orders' is taught as part of mandatory studies in the Israeli high-school system, as well as in basic training in the mandatory Israeli Defense Forces (IDF) service.
1968 My Lai Massacre
Following the My Lai Massacre in 1968, the defense was employed during the court martial of William Calley. Some have argued that the outcome of the My Lai Massacre 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 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.
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.
1996, Erich Priebke
In 1996, the superior orders defense was successfully used by Erich Priebke, although the verdict was appealed and he was later convicted. It was used with varying degrees of success by those involved in the Hostages Trial.
The 1998 Rome Statute of the International Criminal Court
It could be argued[who?] that a version of 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," 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.
There are two interpretations[who?] 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 Prinicple IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or lack of power.
See also: States Parties to the Rome Statute of the International Criminal Court
History 2000 to present