Superior Orders
Encyclopedia
Superior orders is a plea
in a court of law that a soldier not be held guilty for actions which were ordered by a superior office. The superior orders plea is similar to the doctrine of respondeat superior
in tort
law where a superior is held liable for the actions of a subordinate, and the subordinate may escape liability. Some legal scholars and war crimes tribunals will correlate the plea to the doctrine of respondeat superior; whereas others will distinguish the plea from the doctrine of respondeat superior.
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 tribunal
s, held by the main victorious Allied forces
of 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.
In 1474, in the trial of Peter von Hagenbach
by an ad hoc tribunal of the Holy Roman Empire
, there was the first known “international” recognition of commanders’ obligations to act lawfully. 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 of Breisach
. 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.
: 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 Leipsic
Supreme Court (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:
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 issue of superior orders again arose: 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 "orders are orders") and is therefore not responsible for his or her crimes.
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 crime
s.
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:
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 western criminal trials.)
in Israel
, as well as the trial of Alfredo Astiz
of Argentina, responsible for a large number of disappearances and kidnappings that took place during that nation's transfer to democracy.
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 Keenan was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnam
ese 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.
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 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:
There are two interpretations of this Article:
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, (at that time 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:
On Nov 15, 2007, a quorum 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 American 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 courts are taking one stance for Saddam Hussein
's soldiers and another one entirely for American soldiers," Mr. House said.
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.
Based on this principle international law
developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of command responsibility
.
, laws of war
, etc. (See also Rule of Law in Armed Conflicts Project)
(For overview purposes, the below table attempts to capsulize much of the history in the above article. It is based on references above. To navigate to those supporting references and further information for each case, click on "see details" for each case.)
Note 1: Yellow rows indicate the use of the precise plea of Superior Orders in a war crimes trial - as opposed to events regarding the general concept of Superior Orders.
Note 2: "*" Hinzman was not on trial for something he did in battle. However, if the principle of this particular judge's ruling had applied to such a trial, then Hinzman would have been found "not responsible" because of Superior Orders. (see details)
) for committing unlawful acts.
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 dilemma
s 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 superior orders defense.
Another argument against the use of the superior orders defense 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 accomplice
s, accessories
or conspirator
s. (See also the various degrees of liability: absolute liability
, strict liability
, and mens rea
.)
Nuremberg Principle IV, the international law
which counters the superior orders 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 objector
s can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.
Also, the superior orders defense might arise from a situation when the person committing the action that was later deemed to be highly immoral or controversial because accepting responsibility would make the person feel self-guilt so therefore it might be much easier to totally deny any personal responsibility and assign it to the superiors to avoid self-contradiction in some people.
, 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 the culpability of the soldiers under their command for following such orders, when such orders resulted in unintended and unforeseen consequences.
In the television series The A-Team
, the personnel of the United States Army Special Forces
who make up the team are described as having robbed the Bank of Hanoi
under orders which they could not actually prove they had been given because their commanding officer had been murdered and his headquarters had been destroyed.
Plea
In legal terms, a plea is simply an answer to a claim made by someone in a civil or criminal case under common law using the adversary system. Colloquially, a plea has come to mean the assertion by a criminal defendant at arraignment, or otherwise in response to a criminal charge, whether that...
in a court of law that a soldier not be held guilty for actions which were ordered by a superior office. The superior orders plea is similar to the doctrine of respondeat superior
Respondeat superior
Respondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
law where a superior is held liable for the actions of a subordinate, and the subordinate may escape liability. Some legal scholars and war crimes tribunals will correlate the plea to the doctrine of respondeat superior; whereas others will distinguish the plea from the doctrine of respondeat superior.
The superior orders plea is often regarded as the complement to command responsibility
Command responsibility
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
.
One of the most noted uses of this plea, or "defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
," was by the accused in the 1945–46 Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
, such that it is also called the "Nuremberg defense". The Nuremberg Trials were a series of military tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
s, held by the main victorious Allied forces
Allies of World War II
The Allies of World War II were the countries that opposed the Axis powers during the Second World War . Former Axis states contributing to the Allied victory are not considered Allied states...
of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany
Nazi Germany
Nazi Germany , also known as the Third Reich , but officially called German Reich from 1933 to 1943 and Greater German Reich from 26 June 1943 onward, is the name commonly used to refer to the state of Germany from 1933 to 1945, when it was a totalitarian dictatorship ruled by...
. It was during these trials, under the London Charter of the International Military Tribunal
London Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
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.
The trial of Peter von Hagenbach
Peter von Hagenbach
Peter von Hagenbach was a Bourguignon knight from Alsace and Germanic military and civil commander....
by an ad hoc tribunal of the Holy Roman Empire
Holy Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
, there was the first known “international” recognition of commanders’ obligations to act lawfully. 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 of Breisach
Breisach
Breisach is a town with approximately 16,500 inhabitants, situated along the Rhine in the Rhine Valley, in the district Breisgau-Hochschwarzwald, Baden-Württemberg, Germany, about halfway between Freiburg and Colmar — 20 kilometres away from each — and about 60 kilometres north of Basel near the...
. This was the earliest modern European example of the doctrine of command responsibility
Command responsibility
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
. 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
Duke of Burgundy
Duke of Burgundy was a title borne by the rulers of the Duchy of Burgundy, a small portion of traditional lands of Burgundians west of river Saône which in 843 was allotted to Charles the Bald's kingdom of West Franks...
, Charles the Bold, to whom the Holy Roman Empire had given Breisach. This defense was rejected.
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 IWorld War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
: One of the most famous of these trials was the matter of Lieutenant Karl Neumann, who was a U-Boat
U-boat
U-boat is the anglicized version of the German word U-Boot , itself an abbreviation of Unterseeboot , and refers to military submarines operated by Germany, particularly in World War I and World War II...
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 Leipsic
Leipzig
Leipzig Leipzig has always been a trade city, situated during the time of the Holy Roman Empire at the intersection of the Via Regia and Via Imperii, two important trade routes. At one time, Leipzig was one of the major European centres of learning and culture in fields such as music and publishing...
Supreme Court (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
Allies
In everyday English usage, allies are people, groups, or nations that have joined together in an association for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out between them...
. 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
London Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
. This removal has been attributed to the actions of Robert H. Jackson
Robert H. Jackson
Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...
, a Justice of the United States Supreme Court, who was appointed Chief Prosecutor at the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
.
Nuremberg Trials after World War II
In 1945 and 1946, during the Nuremberg TrialsNuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
the issue of superior orders again arose: 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 "orders are orders") and is therefore not responsible for his or her crimes.
Before the end of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal
London Charter of the International Military Tribunal
The London Charter of the International Military Tribunal was the decree issued on August 8, 1945, that set down the laws and procedures by which the Nuremberg trials were to be conducted.The charter stipulated that crimes of the European Axis Powers could be tried...
(IMT), which specifically stated that following an unlawful order is not a valid defense against charges of war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s.
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
Wilhelm Keitel
Wilhelm Bodewin Gustav Keitel was a German field marshal . As head of the Oberkommando der Wehrmacht and de facto war minister, he was one of Germany's most senior military leaders during World War II...
, Alfred Jodl
Alfred Jodl
Alfred Josef Ferdinand Jodl was a German military commander, attaining the position of Chief of the Operations Staff of the Armed Forces High Command during World War II, acting as deputy to Wilhelm Keitel...
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
Winston Churchill
Sir Winston Leonard Spencer-Churchill, was a predominantly Conservative British politician and statesman known for his leadership of the United Kingdom during the Second World War. He is widely regarded as one of the greatest wartime leaders of the century and served as Prime Minister twice...
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 western criminal trials.)
History from 1947 to 2000
The defense of superior orders again arose in the 1961 trial of Adolf EichmannAdolf Eichmann
Adolf Otto Eichmann was a German Nazi and SS-Obersturmbannführer and one of the major organizers of the Holocaust...
in Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, as well as the trial of Alfredo Astiz
Alfredo Astiz
Alfredo Ignacio Astiz was a Commander, intelligence office and maritime commando in the Argentine Navy during the dictatorial rule of Jorge Rafael Videla in the Proceso de Reorganización Nacional...
of Argentina, responsible for a large number of disappearances and kidnappings that took place during that nation's transfer to democracy.
Following the My Lai Massacre
My Lai Massacre
The My Lai Massacre was the Vietnam War mass murder of 347–504 unarmed civilians in South Vietnam on March 16, 1968, by United States Army soldiers of "Charlie" Company of 1st Battalion, 20th Infantry Regiment, 11th Brigade of the Americal Division. Most of the victims were women, children , and...
in 1968, the defense was employed during the court martial of William Calley
William Calley
William Laws Calley is a convicted American war criminal and a former U.S. Army officer found guilty of murder for his role in the My Lai Massacre on March 16, 1968, during the Vietnam War.-Early life:...
. Some have argued that the outcome of the My Lai Massacre
My Lai Massacre
The My Lai Massacre was the Vietnam War mass murder of 347–504 unarmed civilians in South Vietnam on March 16, 1968, by United States Army soldiers of "Charlie" Company of 1st Battalion, 20th Infantry Regiment, 11th Brigade of the Americal Division. Most of the victims were women, children , and...
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
Howard Callaway
Howard Hollis "Bo" Callaway is a businessman and former politician from the state of Georgia.-Early life and education:Callaway was born in LaGrange, Georgia, west of Atlanta. His grandfather was Fuller Earle Callaway. He attended Georgia Tech and graduated from the United States Military Academy...
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
United States v. Keenan
United States v. Keenan was a court case in the United States where the accused was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen...
the Keenan was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnam
Vietnam
Vietnam – sometimes spelled Viet Nam , officially the Socialist Republic of Vietnam – is the easternmost country on the Indochina Peninsula in Southeast Asia. It is bordered by China to the north, Laos to the northwest, Cambodia to the southwest, and the South China Sea –...
ese citizen. The Court of Military Appeals
United States Court of Appeals for the Armed Forces
The United States Court of Appeals for the Armed Forces or CAAF is an Article I court that exercises worldwide appellate jurisdiction over members of the United States armed forces on active duty and other persons subject to the Uniform Code of Military Justice...
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.
In 1996, the superior orders defense was successfully used by Erich Priebke
Erich Priebke
Erich Priebke is a former Hauptsturmführer in the Waffen SS. In 1996 he was convicted of war crimes in Italy, for participating in the massacre at the Ardeatine caves in Rome, on March 24, 1944...
, 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
Hostages Trial
The Hostages Trial was held from8 July 1947 until 19 February 1948 and was the seventh of the twelve trials for war crimes the U.S. authorities held in their occupation zone in Germany in Nuremberg after the end of World War II. These twelve trials were all held before U.S...
.
The 1998 Rome Statute of the International Criminal Court
It could be argued 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 CourtInternational Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
. (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 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.
Legal proceedings of Jeremy Hinzman in Canada
Nuremberg Principle IV, and its reference to an individual’s responsibility, was at issue in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in the case of Hinzman v. Canada. Jeremy Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
was a U.S. Army deserter who claimed refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
status in Canada as a conscientious objector
Conscientious objector
A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, and/or religion....
, one of many Iraq War resisters. Hinzman's lawyer, (at that time Jeffry House
Jeffry House
Jeffry A. House is a lawyer in Toronto, Ontario, Canada. He is best-known for his efforts on behalf and representation of fugitive American soldiers and Native Canadian protesters.-American soldiers:...
), had previously raised the issue of the legality of the Iraq War
Legality of the Iraq War
The legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
as having a bearing on their case. The Federal Court
Federal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice Anne L. Mactavish
Anne Mactavish
Anne L. Mactavish, a Canadian Federal Court trial judge, was born in Montreal, Quebec. Her education was at Bishop's University, University of New Brunswick and University of Ottawa. She was called to the Bar of Ontario in 1982. She became an Associate and Partner at Perley-Robertson, Panet,...
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 quorum of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
made of Justices Michel Bastarache
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
, Rosalie Abella
Rosalie Abella
Rosalie Silberman Abella, is a Canadian jurist. She was appointed in 2004 to the Supreme Court of Canada, becoming the first Jewish woman to sit on the Canadian Supreme Court bench.- Early life :...
, and Louise Charron
Louise Charron
Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
refused an application to have the Court hear the case on appeal, without giving reasons.
“... in written arguments to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, Mr. House
Jeffry House
Jeffry A. House is a lawyer in Toronto, Ontario, Canada. He is best-known for his efforts on behalf and representation of fugitive American soldiers and Native Canadian protesters.-American soldiers:...
pointed out that although our courts have so far refused to grant refugee status to American soldiers who are deserting military duty out of moral objection to the war in Iraq, in 1995 the Federal Court of Appeal
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
granted refugee status to a deserter from Saddam Hussein's armed incursion into Kuwait
Invasion of Kuwait
The Invasion of Kuwait, also known as the Iraq-Kuwait War, was a major conflict between the Republic of Iraq and the State of Kuwait, which resulted in the seven-month long Iraqi occupation of Kuwait, which subsequently led to direct military intervention by United States-led forces in the Gulf...
, on the basis that he should not be compelled to take part in an illegal war.
"The courts are taking one stance for Saddam Hussein
Saddam Hussein
Saddam Hussein Abd al-Majid al-Tikriti was the fifth President of Iraq, serving in this capacity from 16 July 1979 until 9 April 2003...
's soldiers and another one entirely for American soldiers," Mr. House said.
Legal proceedings of Ehren Watada in the United States
In June 2006, during the Iraq War, Ehren WatadaEhren Watada
Ehren K. Watada was a First Lieutenant of the United States Army. He was the first commissioned officer in the US armed forces to refuse to deploy to Iraq, in June, 2006...
refused to go to Iraq on account of his belief that the Iraq war was a crime against peace
Crime against peace
A crime against peace, in international law, refers to "planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing"...
(waging a war of aggression
War of aggression
A war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...
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.
Based on this principle international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of command responsibility
Command responsibility
Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
.
Historical overview summary table
The below overview of history shows a notable lack of consistency in rulings on the issue of superior orders. This lack of consistency raises questions pertaining to international legal theory, sources of international lawSources of international law
Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories...
, laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
, etc. (See also Rule of Law in Armed Conflicts Project)
(For overview purposes, the below table attempts to capsulize much of the history in the above article. It is based on references above. To navigate to those supporting references and further information for each case, click on "see details" for each case.)
| Date | Preceding context | Jurisdiction / decisionmaker | Defendant(s) or case(s) | [found] "responsible" despite superior orders | [found] "not responsible" because of superior orders |
|---|---|---|---|---|---|
| 1474 | the occupation of Breisach Breisach Breisach is a town with approximately 16,500 inhabitants, situated along the Rhine in the Rhine Valley, in the district Breisgau-Hochschwarzwald, Baden-Württemberg, Germany, about halfway between Freiburg and Colmar — 20 kilometres away from each — and about 60 kilometres north of Basel near the... |
ad hoc tribunal of the Holy Roman Empire Holy Roman Empire The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes... |
Peter von Hagenbach Peter von Hagenbach Peter von Hagenbach was a Bourguignon knight from Alsace and Germanic military and civil commander.... |
yes (see details) | |
| 1921 | World War I World War I World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918... |
Germany's Supreme Court (trials after World War I World War I World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918... ) |
Lieutenant Karl Neumann and others | yes (see details) | |
| 1945 | World War II World War II World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis... |
Nuremberg trials Nuremberg Trials The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany.... after World War II World War II World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis... |
all defendants | yes (see details) | |
| 1998 | preparation for future cases | Rome Statute of the International Criminal Court International Criminal Court The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the... |
future cases under Article 33 of the Rome Statute of the International Criminal Court International Criminal Court The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the... |
possibly in cases of genocide (see details) | possibly in cases other than genocide (see details) |
| 2006 | Iraq War | Justice Anne L. Mactavish Anne Mactavish Anne L. Mactavish, a Canadian Federal Court trial judge, was born in Montreal, Quebec. Her education was at Bishop's University, University of New Brunswick and University of Ottawa. She was called to the Bar of Ontario in 1982. She became an Associate and Partner at Perley-Robertson, Panet,... - Federal Court (Canada) Federal Court (Canada) The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction... |
Jeremy Hinzman Jeremy Hinzman Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada.... (refugee applicant) |
equivalent to yes* (see details) | |
Note 1: Yellow rows indicate the use of the precise plea of Superior Orders in a war crimes trial - as opposed to events regarding the general concept of Superior Orders.
Note 2: "*" Hinzman was not on trial for something he did in battle. However, if the principle of this particular judge's ruling had applied to such a trial, then Hinzman would have been found "not responsible" because of Superior Orders. (see details)
Arguments for and against
The superior orders 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 (e.g. Nuremberg TrialsNuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
) for committing unlawful acts.
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
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
does not relieve the person who committed the act from responsibility under international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
."
The above scenario might present a legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
dilemma, but Nuremberg Principle IV speaks of "a moral
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
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 dilemma
Ethical dilemma
An Ethical dilemma is a complex situation that will often involve an apparent mental conflict between moral imperatives, in which to obey one would result in transgressing another....
s an ethical decision
Ethical decision
In the context of decision making, your ethics are your personal standards of right and wrong. They are your basis for making ethically sensitive decisions.- Ethics vs. Morals :The words 'ethics' and 'morals' are frequently used interchangeably....
is often made by appealing to a "higher ethic" such as ethics in religion
Ethics in religion
Most religions have an ethical component, often derived from purported supernatural revelation or guidance. "For many people, ethics is not only tied up with religion, but is completely settled by it...
or secular ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
. One such "higher ethic," which is found in many religions and also in secular ethics, is the "ethic of reciprocity
Ethic of reciprocity
The Golden Rule or ethic of reciprocity is a maxim, ethical code, or moralitythat essentially states either of the following:* : One should treat others as one would like others to treat oneself....
," or the Golden Rule
Golden Rule
Golden Rule may refer to:*The Golden Rule in ethics, morality, history and religion, also known as the ethic of reciprocity*Golden Rule savings rate, in economics, the savings rate which maximizes consumption in the Solow growth model...
. 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 superior orders defense.
Another argument against the use of the superior orders defense is that it does not follow the traditional legal definitions and categories established under criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
. Under criminal law, a principal
Principal (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....
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 accomplice
Accomplice
At law, an accomplice is a person who actively participates in the commission of a crime, even though they take no part in the actual criminal offense. For example, in a bank robbery, the person who points the gun at the teller and asks for the money is guilty of armed robbery...
s, accessories
Accessory (legal term)
An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal...
or conspirator
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
s. (See also the various degrees of liability: absolute liability
Absolute liability
Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action, but also have had a deliberate intention or guilty mind...
, strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
, and mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
.)
Nuremberg Principle IV, the international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
which counters the superior orders defense, is legally supported by the jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
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
United Nations High Commissioner for Refugees
The Office of the United Nations High Commissioner for Refugees , also known as The UN Refugee Agency is a United Nations agency mandated to protect and support refugees at the request of a government or the UN itself and assists in their voluntary repatriation, local integration or resettlement to...
(UNHCR). Those principles deal with the conditions under which conscientious objector
Conscientious objector
A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, and/or religion....
s can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.
Also, the superior orders defense might arise from a situation when the person committing the action that was later deemed to be highly immoral or controversial because accepting responsibility would make the person feel self-guilt so therefore it might be much easier to totally deny any personal responsibility and assign it to the superiors to avoid self-contradiction in some people.
In popular culture
In the Christopher Buckley novel Thank You for Smoking and its film adaptationThank You for Smoking
Thank You for Smoking is a 2005 black comedy film written and directed by Jason Reitman and starring Aaron Eckhart, based on the 1994 satirical novel of the same name by Christopher Buckley...
, the main character Nick Naylor justifies his career to a reporter by telling her that "Everybody has a mortgage
Mortgage loan
A mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...
to pay," and referring to his response as the "Yuppie
Yuppie
Yuppie is a term that refers to a member of the upper middle class or upper class in their 20s or 30s. It first came into use in the early-1980s and largely faded from American popular culture in the late-1980s, due to the 1987 stock market crash and the early 1990s recession...
Nuremberg defense."
The play and film A Few Good Men
A Few Good Men (film)
A Few Good Men is a 1992 drama film directed by Rob Reiner and starring Tom Cruise, Jack Nicholson, and Demi Moore. It was adapted for the screen by Aaron Sorkin from his play of the same name. A courtroom drama, the film revolves around the trial of two U.S...
revolves around the question of the culpability of officers giving orders which they knew to be illegal, and the culpability of the soldiers under their command for following such orders, when such orders resulted in unintended and unforeseen consequences.
In the television series The A-Team
The A-Team
The A-Team is an American action adventure television series about a fictional group of ex-United States Army Special Forces personnel who work as soldiers of fortune, while on the run from the Army after being branded as war criminals for a "crime they didn't commit". The A-Team was created by...
, the personnel of the United States Army Special Forces
United States Army Special Forces
The United States Army Special Forces, also known as the Green Berets because of their distinctive service headgear, are a special operations force tasked with six primary missions: unconventional warfare, foreign internal defense, special reconnaissance, direct action, hostage rescue, and...
who make up the team are described as having robbed the Bank of Hanoi
Hanoi
Hanoi , is the capital of Vietnam and the country's second largest city. Its population in 2009 was estimated at 2.6 million for urban districts, 6.5 million for the metropolitan jurisdiction. From 1010 until 1802, it was the most important political centre of Vietnam...
under orders which they could not actually prove they had been given because their commanding officer had been murdered and his headquarters had been destroyed.
See also
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- International legal theory
- Laws of warLaws of warThe law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
- Milgram ExperimentMilgram experimentThe Milgram experiment on obedience to authority figures was a series of notable social psychology experiments conducted by Yale University psychologist Stanley Milgram, which measured the willingness of study participants to obey an authority figure who instructed them to perform acts that...
- psychology experiments which measured the willingness of study participants to obey an authority figure who instructed them to perform acts that conflicted with their conscience. - Nuremberg Principle IV
- Nuremberg PrinciplesNuremberg PrinciplesThe Nuremberg principles were a set of guidelines for determining what constitutes a war crime. The document was created by the International Law Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members following World War II.- Principle...
- Peter von HagenbachPeter von HagenbachPeter von Hagenbach was a Bourguignon knight from Alsace and Germanic military and civil commander....
- Respondeat superiorRespondeat superiorRespondeat superior is a legal doctrine which states that, in many circumstances, an employer is responsible for the actions of employees performed within the course of their employment...
- Rule of Law in Armed Conflicts Project
- Sources of international lawSources of international lawSources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories...
- Vicarious liabilityVicarious liabilityVicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...