- Nuremberg Defense
The Nuremberg Defense is a
legal defensethat 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 this was 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."
The United States military adjusted the
Uniform Code of Military Justiceafter World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders (and in some countries probably killed and then his superior officer will simply carry out the order for him or order another soldier to do it), and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.
All US military personnel are supposed to receive annual training in the
Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts, and is derived from the Geneva Conventions, a subset of international law. This training is designed to ensure that US military personnel are familiar with their military, ethical and legal obligations during wartime but proof of military personnel receiving this training is difficult to substantiate and is often not received.
Wilhelm Keitel, Alfred Jodland other defendants of the Nuremberg trialsunsuccessfully used the defense during their trials. The defense was employed during the court martial of William Calleyfollowing the My Lai Massacrein 1968. The defense has also been used to defend soldiers during the Abu Ghraib torture and prisoner abusescandal.
Some have argued that the outcome of the
My Lai Massacrecourts martial was a reversal of the laws of war that were set forth in the Nuremberg and Tokyo War Crimes Tribunals. [cite news|last=Marshall|first=Burke|coauthors=Goldstein, Joseph|title=Learning From My Lai: A Proposal on War Crimes|publisher=The New York Times|date= 2 April 1976|page=26] Secretary of the Army Howard Callawaywas 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 Watadarefused to go to Iraq on account of the Iraq war being a war of aggression, making him liable for prosecution for war crimes under the command responsibility doctrine. The judge ruled that a US soldier is not allowed to determine whether orders given are unlawful and as such this would mean he/she is forced to follow those orders he/she considers illegal, and inevitably if charged with war crimes has to resort to the "I was only following orders" defense.
Nuremberg Principle IV, and its reference to an individual’s responsibility, was at issue in
Canadain the case of "Hinzman v. Canada." Jeremy Hinzmanwas a U.S. Army deserterwho claimed refugeestatus in Canada as a conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, Jeffry Househad previously raised the issue of the legality of the Iraq Waras having a bearing on their case. The Federal Court ruling was released on March 31, 2006, and denied the refugee status claim. [cite web|url=http://www.nowtoronto.com/issues/2006-05-18/news_story5.php|title= AWOL GIs Dealt Legal Blow|date=2006-05-18|author= Mernagh, M.|publisher= Toronto’s Now Magazine|accessdate=2008-06-02] [citeweb|url= http://reports.fja.gc.ca/eng/2006/2006fc420/2006fc420.html|title=Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420|pages=(see "Held," Para. (1))|publisher= Office of the Commisioner for Federal Judicial Affairs |accessdate=2008-06-16] In the decision, Justice Anne L. Mactavishaddressed 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.” [cite web|url=http://www.nowtoronto.com/issues/2006-05-18/news_story5.php|title= AWOL GIs Dealt Legal Blow|date=2006-05-18|author= Mernagh, M.|publisher= Toronto’s Now Magazine|accessdate=2008-06-02] [ [http://decisions.fct-cf.gc.ca/en/2006/2006fc420/2006fc420.html "Hinzman v. Canada"] Federal Court decision. Paras (157) and (158). Accessed 2008-06-18]
On Nov 15, 2007, the
Supreme Court of Canadarefused to hear the case on appeal, without giving reasons. [cite web|url=http://www.cbc.ca/canada/story/2007/11/15/hinzman-decision.html|title= Top court refuses to hear cases of U.S. deserters|date=2007-11-15|author=CBC News|publisher=CBC News|accessdate=2008-06-02]
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.
Based on this principle
international lawdeveloped the concept of individual criminal liability for war crimes which resulted in the current doctrine of Command responsibility.
In popular culture
Christopher Buckleynovel "Thank You for Smoking" and its film adaptation, Nick Naylormentions the " YuppieNuremberg Defense." According to Naylor the Yuppie Nuremberg Defense is "It pays the mortgage."
The main theme of the movie "
A Few Good Men" is about whether someone ordered to commit a crime is guilty or innocent.
* [http://usmilitary.about.com/cs/militarylaw1/a/obeyingorders_2.htm usmilitary.about.com: To Obey or Not to Obey]
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