Nuremberg Defense
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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, which specifically stated that this was not a valid defense against charges of war crimes.
Thus, under the Nuremberg Principles, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty.
"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 Justice after 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 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.
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[edit] Uses
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. The defense has also been used to defend soldiers during the Abu Ghraib torture and prisoner abuse scandal.
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.[1] 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 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.
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 law developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of Command responsibility.
[edit] In popular culture
In the Christopher Buckley novel Thank You For Smoking and its film adaptation, Nick Naylor mentions the "Yuppy Nuremberg 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.
