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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 Trials, after which it is named.
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."
Arguments for and against
This defense is still used with the following rationale in the following scenario: An "order" may come from one's superior at the level of national law. But according to Nuremberg Principle IV, such an order is sometimes "unlawful" according to international law. Such an "unlawful order" presents a legal dilemma from which there is no legal escape: On one hand, a person who refuses such an unlawful order faces the possibility of legal punishment at the national level for refusing orders. On the other hand, a person who accepts such an unlawful order faces the possibility of legal punishment at the international level (eg. Nuremberg Trials) for committing unlawful acts. Therefore this is a Catch-22 legal dilemma.
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."
The above scenario might present a legal dilemma, but Nuremberg Principle IV speaks of "a moral choice" as being just as important as "legal" decisions: It 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".
In "moral choices" or ethical dilemmas an ethical decision is often made by appealing to a "higher ethic" such as ethics in religion or secular ethics. One such "higher ethic," which is found in many religions and also in secular ethics, is the "ethic of reciprocity," or the Golden Rule. It states that one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others. "Higher ethics," such as those, could be used by an individual to solve the legal dilemma presented by the Nuremberg defense.
Another argument against the use of the Nuremberg Defense (ie. "I was just following orders") is that it does not follow the traditional legal definitions and categories established under criminal law. Under criminal law, a principal is any actor who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices, accessories or conspirators.
Nuremberg Principle IV, the international law which counters the Nuremberg Defense, is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status which was issued by the Office of the United Nations High Commissioner for Refugees (UNHCR). Those principles deal with the conditions under which conscientious objectors can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.
Wilhelm Keitel, Alfred Jodl and other defendants of the Nuremberg trials unsuccessfully used the defense during their trials. The defense was employed during the court martial of William Calley following the My Lai Massacre in 1968. 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 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 Watada refused to go to Iraq on account of his belief that the Iraq war was a crime against peace (waging a war 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 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 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.
Uses in Canada
Nuremberg Principle IV, and its reference to an individual’s responsibility, was at issue in Canada in the case of Hinzman v. Canada. Jeremy Hinzman was a U.S. Army deserter who claimed refugee status in Canada as a conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, Jeffry House had previously raised the issue of the legality of the Iraq War as having a bearing on their case. The Federal Court ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice Anne 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.”
On Nov 15, 2007, a Coram of the Supreme Court of Canada made of Justices Michel Bastarache, Rosalie Abella, and Louise Charron refused an application to have the Court hear the case on appeal, without giving reasons.
“... in written arguments to the Supreme Court of Canada, Mr. House 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 Iraq, in 1995 the Federal Court of Appeal granted refugee status to a deserter from Saddam Hussein's armed incursion into Kuwait, on the basis that he should not be compelled to take part in an illegal war.
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 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 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 Buckley novel Thank You for Smoking and its film adaptation, the main character Nick Naylor justifies his career to a reporter by telling her that "Everybody has a mortgage to pay," and referring to his response as the "Yuppie Nuremberg Defense."
The play and film A Few Good Men 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.
- Command responsibility
- Peter von Hagenbach
- Milgram Experiment
- Nuremberg Principles
- Superior Orders
- Lawful orders
- ^ International Committee of the Red Cross (ICRC) References Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950: Introduction
- ^ See, e.g., Superior Growers, 982 F.2d at 177-78; United States v. Campa, 679 F.2d 1006, 1013 (lst Cir. 1982).
- ^ Marshall, Burke; Goldstein, Joseph (2 April 1976). "Learning From My Lai: A Proposal on War Crimes". The New York Times. p. 26.
- ^ a b Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto’s Now Magazine. http://www.nowtoronto.com/news/story.cfm?content=153504&archive=25,38,2006. Retrieved 2008-06-02.
- ^ "Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420". Office of the Commisioner for Federal Judicial Affairs. pp. (see Held, Para. (1)). http://reports.fja.gc.ca/eng/2006/2006fc420/2006fc420.html. Retrieved 2008-06-16.
- ^ Hinzman v. Canada Federal Court decision. Paras (157) and (158). Accessed 2008-06-18
- ^ CBC News (2007-11-15). "Top court refuses to hear cases of U.S. deserters". CBC News. http://www.cbc.ca/canada/story/2007/11/15/hinzman-decision.html. Retrieved 2008-06-02.
- ^ "Supreme Court of Canada - Decisions - Bulletin of November 16, 2007, (See Sections 32111 and 32112)". http://scc.lexum.umontreal.ca/en/bulletin/2007/07-11-16.bul/07-11-16.bul.html.
- ^ Hill, Lawrence (November 24, 2007). "Just desertions". Ottawa Citizen. http://www.canada.com/ottawacitizen/news/story.html?id=16d90480-ccf6-4e3d-9848-ae35143e7685&p=1. Retrieved 30 January 2009.