Before 1500 er Chronik des Diebold Schilling dem Älteren 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. 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 that "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, but this defense was rejected and he was convicted of
war crimes and beheaded.
1900–1947 Court-martial of Breaker Morant During the
Second Boer War, four Australian officers (
Breaker Morant,
Peter Handcock, Henry Picton, and
George Witton) were indicted and tried for a number of murders, including those of prisoners who had surrendered and been disarmed. A significant part of the defense was that they were acting under orders issued by
Lord Kitchener to "
take no prisoners". However, these alleged orders were only issued verbally, were denied by Kitchener and his staff, and could not be validated in court. Furthermore, the crown prosecutor argued that even if such orders existed, they were "illegal orders" and was sustained by the court, resulting in a guilty verdict against all four men. In a ruling still reviled by some in modern
Australia as a
miscarriage of justice, the defendants' de facto commanding officer, Captain
Alfred Taylor, whose own actions are widely considered to have been much more brutal and inhumane, was also tried but was acquitted on all charges.
German military trials after World War I On June 4, 1921, the legal limits of superior orders were tested during the
Leipzig War Crimes Trials that tried German military veterans for committing alleged
war crimes in World War I in a civilian court after the
Treaty of Versailles. One of the most famous of these trials remains that of
Kapitänleutnant Karl Neumann of
SM UC-67; the
U-boat Officer Commanding who torpedoed and sank the British
hospital ship the
Dover Castle. Even though Neumann frankly admitted to having sunk the ship, he stated that he had done so on the basis of authorisation supplied by the
German Admiralty. The Imperial German Government had accused the
Allies of violating Articles X and XI of the
Hague Convention of 1907 by using hospital ships for military purposes, such as transporting healthy troops, and the
Imperial German Navy had accordingly decreed on 19 March 1917 that
officers commanding individual U-boats could choose to fire upon Allied hospital ships under certain conditions. The
Reichsgericht, then Germany's supreme court, acquitted Lt.-Capt. Neumann, accepting the defense that he had believed the sinking to be a lawful act. Further, the court stated "that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors". Many other German veterans similarly facing prosecution for war crimes at Leipzig were also acquitted by either alleging ignorance of the law or citing the superior orders defense, creating immense dissatisfaction among the
Allied news media and public. On the other hand, when the defendants at Leipzig could not reasonably claim that they did not know at the time that they were obeying
criminal orders, this defense proved ineffective. For instance, following the sinking of the Canadian hospital ship
HMHS Llandovery Castle,
Oberleutnants zur See Ludwig Dithmar and John Boldt of
SM U-86 were ordered to open fire with the
deck gun on the unarmed shipwreck survivors and obeyed the order. They were both found guilty and sentenced, despite the very deep stigma and humiliation involved for a military officer in pre-1945
German culture, to serve their terms of incarceration in a civilian prison. However, the verdict was later overturned on appeal, on the grounds that their fugitive former commanding officer,
Helmut Brümmer-Patzig, bore the lion's share of the guilt. According to American historian
Alfred de Zayas, however, "generally speaking, the German population took exception to these trials, especially because the Allies were not similarly bringing their own soldiers to justice." (See
Victor's justice.) Even so, dissatisfaction with the Leipzig trials is thought to be one of the main causes for the specific nullification of the superior orders 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.
Dostler case On October 8, 1945,
Anton Dostler was the first
German general to be tried for war crimes by a US
military tribunal at the
Royal Palace of Caserta. He was accused of ordering the execution of 15 captured US soldiers of
Operation Ginny II in Italy in March 1944. He admitted to ordering the execution, but said that he could not be held responsible because he was following orders from his superiors. The execution of the
prisoners of war in Italy, ordered by Dostler, was an implementation of
Adolf Hitler's
Commando Order of 1942, which required the immediate execution of all
Allied commandos, whether they were in proper uniforms or not, without trial if they were apprehended by German forces. The tribunal rejected the defense of superior orders and found Dostler guilty of war crimes. He was sentenced to death and
executed by a firing squad on December 1, 1945, in
Aversa. The Dostler case became a precedent for the principle that was used in the Nuremberg Trials of German generals, officials, and Nazi leaders beginning in November 1945: using superior orders as a defense does not relieve officers from responsibility of carrying out illegal orders and their liability to be punished in court. The principle was codified in
Principle IV of the
Nuremberg Principles, and similar principles are in the 1948
Universal Declaration of Human Rights.
Nuremberg Trials after World War II In 1945–46, during the
Nuremberg trials the issue of superior orders again arose. 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 explicitly 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 be a mitigating factor that could 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. They contended that while they knew Hitler's orders were unlawful, or at least had reason to believe they were unlawful, their place was not to question, but to obey. They claimed they were compelled to do so by the (leader principle) that governed the Nazi regime, as well as their own
oath of allegiance to Hitler. In most cases, the tribunal found that the defendants' offenses were so egregious that obedience to superior orders could not be considered a mitigating factor. Before the trials, there was little Allied consensus about prosecuting 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. The German military law since 1872 said that while the superior is ("solely") responsible for his order, the subordinate is to be punished for his participation in it if he either transgressed the order on his own account, or if he knew the order to be criminal. The Nazis did not bother (or were too reluctant) to formalize many of their offenses (e.g., killing a non-combatant without trial), so the prosecutors at Nuremberg could have argued that the defendants broke German law to begin with. However, this line of argument was infrequently used.
"Nuremberg defense" The trials gained so much attention that the "superior orders defense" has subsequently become interchangeable with the label "Nuremberg defense", a
legal defense that essentially states that defendants were "only following orders" (, literally "an order is an order") and so are not responsible for their crimes. However, US General
Telford Taylor, who had served as Chief Counsel for the United States during the Nuremberg trials, employed the term "Nuremberg defense" in a different sense. He applied it not to the defense offered by the Nuremberg defendants but to a justification put forward by those who refused to take part in military action (specifically America's involvement in the Vietnam War) that they believed to be criminal.
1947–2000 The defense of superior orders again arose in the
1961 trial of Nazi war criminal
Adolf Eichmann in
Israel, as well as the trial of
Alfredo Astiz of
Argentina, who was responsible for many disappearances and kidnappings that took place during its
last civil-military dictatorship (1976–1983). The dictators forced
state-sponsored terrorism upon the population, resulting in what (to several sources) amounted to
genocide. The 1950s and 1960s saw the defense of (), a concept in which a certain action is ordered which violates law but where the refusal to carry it out would lead to drastic consequences for the person refusing. This was quite successful in war crimes trials in Germany. With the formation of the
Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes this changed, as its research revealed that refusing an unlawful order did not result in punishment.
Israeli law since 1956 In 1957, the Israeli legal system established the concept of a "blatantly illegal order" to explain when a military (or security-related) order should be followed, and when it
must not be followed. The concept was explained in 1957 in the
Kafr Qasim massacre ruling. The trial considered for the first time the issue of when Israeli security personnel are required to disobey illegal orders. The judges decided that soldiers do not have the obligation to examine each and every order in detail as to its legality, nor were they entitled to disobey orders merely on a subjective feeling that they might be illegal. On the other hand, some orders were manifestly illegal, and these must be disobeyed. Judge
Benjamin Halevy's words, still much-quoted today, were that "The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: 'Prohibited!' Illegality that pierces the eye and revolts the heart, if the eye is not blind and the heart is not impenetrable or corrupt." Captain (res.) Itai Haviv, a signatory of the 'courage to refuse' letter of 2002, told of his unhappiness about his service for the
Israeli Defense Forces (IDF) and said "For 35 years a black flag was proudly hanging over our heads, but we have refused to see it". A translation note explains the "Black Flag" principle but adds "In the 45 years that passed since [the ruling], not even a single soldier was protected by a military court for refusing to obey a command because it was a 'black flag' command."
1968 Mỹ Lai massacre Following the
Mỹ Lai massacre in 1968, the defense was employed during the court martial of
William Calley. Some have argued that the outcome of the Mỹ Lai trial 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. Calley used the exact phrase "just following orders" when another American soldier,
Hugh Thompson, confronted him about the ongoing massacre. In
United States v. Keenan, the accused was found guilty of murder after he obeyed an order to shoot and kill an elderly
Vietnamese 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.
1987 Canadian prosecution of Imre Finta The Canadian government prosecuted Hungarian Nazi collaborator
Imre Finta under its war crimes legislation in 1987. He was accused of organizing the deportation of over 8,000 Jews to Nazi death camps. He was acquitted on the defence that he was following the orders of a superior. The Canadian courts that accepted that verdict are the only ones in the world that recognize that legal defence.
1998 Rome Statute of the International Criminal Court The
Rome Statute was agreed in 1998 as the foundation document of the
International Criminal Court, established to try those accused of serious international crimes. Article 33, titled "Superior orders and prescription of law", states: {{blockquote|text= {{ordered list {{ordered list|type=lower-alpha
2000–present Legal proceedings of Jeremy Hinzman 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, (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 November 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.
Legal proceedings of Ehren Watada in the United States In June 2006, during the
Iraq War,
Ehren Watada refused to go to Iraq on account of his belief that the 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 is itself a lawful order – but are only responsible for those orders resulting in a specific application of military force, such as shooting civilians or treating 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. It is often the case in modern warfare that while subordinate military officials are not held liable for their actions, neither are their superiors, as was the case with Calley's immediate superior Captain Ernest Medina. 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.
Legal proceedings of Vadim Shishimarin in Ukraine On February 28, 2022, during the
Russian invasion of Ukraine, Russian Sergeant
Vadim Shishimarin shot and killed unarmed civilian Oleksandr Shelipov, a 62 year old Ukrainian man. His trial started on 13 May 2022, and on Wednesday 18 May, Shishimarin pleaded guilty to the killing. On Friday 20 May, Shishimarin's defense lawyer asked for his client to be acquitted of war crimes. He argued that Shishimarin had intended not to kill but only to carry out the order formally, which Shishimarin had refused twice before succumbing to pressure from other soldiers. He further argued that the shots were unaimed, fired from a moving vehicle with a faulty tire, and only one bullet out of the burst hit. Shishimarin was sentenced to life in prison, reduced to 15 years on appeal.
Summary Note: 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. ==Arguments==