The Holocaust deniers claim: “The Germans who participated in the killings were just following orders. They had no choice; refusal would have meant their own death. Holding them responsible imposes a moral standard that wartime conditions made impossible to meet. The ‘just following orders’ defence was rejected at Nuremberg unfairly.”
The “just following orders” defence (Befehlsnotstand) was raised by hundreds of defendants at the Nuremberg trials, the Frankfurt Auschwitz Trial of 1963 to 1965, the various Einsatzgruppen-related proceedings before the Central Office in Ludwigsburg from the 1960s onwards, and in dozens of other post-war prosecutions. In every major case the defence was tested factually: did the defendant have a real choice? could he have refused? what happened to those who did refuse? The factual record, established across decades of judicial proceedings, is that men who refused to participate in the killings did not face execution or any serious punishment. They were transferred to other duties, sometimes with minor career consequences but with no threat to their lives. The “just following orders” defence is factually false in addition to being legally unavailable.
The Browning study
The most extensive single piece of evidence on the question is Christopher Browning’s Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (1992), based on the post-war investigation files for that battalion compiled by the Hamburg state prosecutor between 1962 and 1972. The investigation included approximately 200 interrogations of surviving battalion members, conducted under West German criminal procedure with full procedural protections. The interrogations addressed in detail the question of whether men had felt able to refuse to participate in shootings.
The battalion commander, Major Wilhelm Trapp, on the morning of the first major shooting operation (at Józefów on 13 July 1942), assembled his men and explicitly offered any of them who did not feel up to the task an opportunity to step out. The offer was real and was witnessed by all present. Approximately twelve of the 500 men accepted the offer; they were assigned other duties for that day and for subsequent shooting operations. Some additional men dropped out during the shootings themselves, asked to be relieved, and were assigned other duties. None faced execution or any other serious punishment. None faced any career consequences beyond not being eligible for the unit’s later combat assignments. The evidence is unambiguous: refusal was possible, and the men who refused suffered no significant consequence.
The same finding has been made in dozens of subsequent studies of specific units: Edward B. Westermann’s work on the Order Police battalions, Harald Welzer’s Täter: Wie aus ganz normalen Menschen Massenmörder werden (2005), the various Ludwigsburg Central Office investigations of Einsatzgruppen-affiliated personnel, and the West German criminal proceedings before the various state courts. The Befehlsnotstand defence was raised repeatedly; in every case where the question was tested factually, the defendant was unable to identify a single instance, anywhere across the Eastern Front, of a German soldier or policeman being executed for refusing to participate in killings of Jewish civilians.
The Frankfurt court findings
The Frankfurt Auschwitz Trial of 1963 to 1965 examined the question in detail in the context of the Auschwitz SS personnel. Numerous defendants raised the Befehlsnotstand defence; the court (Judge Hans Hofmeyer presiding) explicitly examined the factual basis for it. The court found that no defendant could identify a specific case of execution or serious punishment for refusal to participate in killings, that the defendants had had real choices and had made them, and that the “just following orders” defence had no factual foundation. The court convicted seventeen of the twenty-two defendants. The findings of the Frankfurt court on this point have been the standing position of the German judiciary since 1965.
The legal framework
The legal status of the “just following orders” defence had been clarified at the Nuremberg International Military Tribunal in 1945 to 1946, and had been embodied in Article 8 of the IMT Charter: “The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.” The principle was a codification of pre-war international legal practice, including the German military code itself, which had explicitly required officers to refuse manifestly criminal orders. The principle has since been incorporated into the standing international law of armed conflict and has been repeatedly applied in subsequent international criminal tribunals (the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court).
The deniers’ argument that the principle was applied unfairly at Nuremberg is the position that war crimes by German personnel should have been subject to a more permissive legal standard than war crimes by other personnel. The IMT applied the principle that had governed the German military’s own legal code; the application was not retrospective novelty.
The motivations of the perpetrators
The historical literature on perpetrator motivation has converged on a complex picture in which “just following orders” plays no significant explanatory role. The men who participated in the killings did so for a range of reasons including ideological commitment, peer pressure, careerism, the social dynamics of small-group conformity, racism, and habituation. Browning’s Ordinary Men emphasises peer pressure and small-group conformity. Daniel Goldhagen’s Hitler’s Willing Executioners (1996), arguing more contentiously, emphasises ideological antisemitism. Harald Welzer emphasises the habituation effect of repeated participation. Wendy Lower’s Hitler’s Furies (2013) addressed the women who participated. The consensus is that participation was voluntary in any meaningful sense, that the men had real choices, and that the variety of motivations is the appropriate explanatory framework. None of the standard scholarly accounts treats “just following orders” as a substantive explanation.
Why the claim is harmful
The claim is harmful because it provides a moral cover for individual responsibility that the historical and legal record does not support. The men who participated in the killings had real choices, made those choices voluntarily, and faced no significant consequence for refusing. The Frankfurt court’s findings on this point, the Browning research, the Ludwigsburg Central Office investigations, and the wider scholarly literature have all converged on this conclusion. The denier framing requires the listener to dismiss the factual record on what happened to those who refused. The factual record is clear; the framing is incorrect.
What happened to men who asked to be excused from killings? Where can Browning’s research on Reserve Police Battalion 101 be read? What did the Frankfurt Auschwitz Trial find on the Befehlsnotstand defence?
See also
- Ordinary People Who Became Killers, Reserve Police Battalion 101
- The Nuremberg Trials
- The Einsatzgruppen
- Adolf Hitler
Sources
- Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, HarperCollins, 1992; revised edition 2017
- Edward B. Westermann, Hitler’s Police Battalions: Enforcing Racial War in the East, University Press of Kansas, 2005
- Harald Welzer, Täter: Wie aus ganz normalen Menschen Massenmörder werden, S. Fischer, 2005
- Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust, Knopf, 1996
- Wendy Lower, Hitler’s Furies: German Women in the Nazi Killing Fields, Houghton Mifflin Harcourt, 2013
- Frankfurt Auschwitz Trial transcripts (1963 to 1965), Fritz Bauer Institut, Frankfurt; Hermann Langbein, Der Auschwitz-Prozess: Eine Dokumentation, two volumes, Europa Verlag, 1965
- Devin O. Pendas, The Frankfurt Auschwitz Trial 1963 to 1965: Genocide, History, and the Limits of the Law, Cambridge University Press, 2006
- Charter of the International Military Tribunal, 8 August 1945, in Trial of the Major War Criminals before the International Military Tribunal, vol. 1
- Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes (Zentrale Stelle der Landesjustizverwaltungen), Ludwigsburg, investigation files on the Einsatzgruppen and related operations
- Klaus-Michael Mallmann and Gerhard Paul (eds.), Karrieren der Gewalt: Nationalsozialistische Täterbiographien, Wissenschaftliche Buchgesellschaft, 2004
- Tom Segev, Soldiers of Evil: The Commandants of the Nazi Concentration Camps, McGraw-Hill, 1988
- USHMM Holocaust Encyclopedia, “Perpetrators” and “The Following Orders Defense”, https://encyclopedia.ushmm.org