Superior orders, also known as the Nuremberg defense or just following orders, is a plea in a court of law that a person, whether a member of the military, law enforcement, or the civilian population, should not be considered guilty of committing actions that were ordered by a superior officer or 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 1945–1946 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 Allies after World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. These trials, under the London Charter of the International Military Tribunal that established them, determined that the defense of superior orders was no longer enough to escape punishment, but merely enough to lessen punishment.
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 to explain the evolution of the specific plea of superior orders and the history of its usage.
Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with inconsistent rulings, up to the final ruling of International Criminal Court in the Prosecutor v Ntaganda case.
History
Before 1500
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 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.
1900–1947
Court-martial of Breaker Morant
During the Second Boer War, three Australian officers (Morant, Handcock and Witton) were charged and tried for a number of murders, including those of prisoners who had surrendered. A significant part of the defense was that they were acting under orders issued by Lord Kitchener to "take no prisoners". However, these orders were verbal, were denied by Kitchener and his staff, and could not be validated in court, resulting in a guilty verdict against all three men.
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 so he could not be held liable for his actions. The Reichsgericht, then Germany's supreme court, acquitted him, accepting the defense of superior orders as a grounds to escape criminal liability. Further, the court stated "... 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 among the Allies. This is 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. The 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.