On the witness stand at the International Military Tribunal in March 1946 the defendant Wilhelm Keitel was asked, repeatedly and in different forms, whether he accepted that he had personally borne responsibility for the orders he had signed and transmitted as Chief of the Wehrmacht High Command. The orders included the Commissar Order of June 1941, which condemned all captured Soviet political officers to summary execution; the Barbarossa Decree of May 1941, which removed civilians in occupied Soviet territory from the protection of military law; and the Night and Fog Decree of December 1941, under which prisoners in Western occupied territories were taken from their families without notification and transported to camps in Germany without trial. Keitel’s answer was the answer almost every defendant at Nuremberg gave when asked the same question:
I had received an order from my supreme commander. To refuse such an order in time of war was, in my position, impossible. I am not a politician. I am a soldier. The duty of a soldier is to obey.
The argument is the most famous defence raised at Nuremberg. It has its own name: the defence of superior orders. It is sometimes called the Nuremberg defence, although the bench at Nuremberg rejected it definitively and although the principle by which the bench rejected it has since been called the Nuremberg principle. The bench’s rejection of the defence is one of the most important single contributions of the IMT to the postwar law of war. It is also, in its rejection, one of the most contested. The argument continues to be raised in international war crimes proceedings eighty years later. The framework the IMT established for answering it is the framework still in use.
The defence as it was raised
The defence was raised, in different forms, by most of the defendants at the IMT. Keitel and Jodl raised it most directly. Their position was that they were senior soldiers serving under a constitutional head of state, that the orders they had transmitted had been lawful under the German military code as it stood, and that to disobey would have exposed them to immediate court-martial. Sauckel, the slave-labour plenipotentiary, raised a softer version: he had been required to deliver the labour and had not had operational control over the conditions in which the workers were kept. Frank, the Governor-General of Poland, raised it in a more peculiar form: he had been a senior administrator carrying out a policy set by Hitler personally, and his choice had been compliance or removal from office. Speer raised the most sophisticated version: he had served as a technocrat operating within a system whose criminal nature he had been slow to recognise, and his individual orders had each been defensible on the technical merits of the moment.
The defence had been raised in earlier military proceedings. The Leipzig trials of German officers after the First World War had largely accepted versions of it. The American military code in force in 1946 had a provision under which obedience to a lawful order was a defence. The British and French military codes had similar provisions. The defence at the IMT relied on these precedents to argue that international law did not impose a standard stricter than the participating Allied states applied to their own soldiers.
The Charter
Article 8 of the London Charter, drafted at the four-power conference in summer 1945, addressed the defence directly:
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 provision was not a complete prohibition. It was a statement that the defence could not, by itself, free a defendant of responsibility, but might affect the sentence. Robert Jackson, who had largely drafted the article, defended it in correspondence afterwards as a recognition that absolute prohibition would have been too harsh and absolute permission would have been too lax. The bench applied the article through the trial.
The bench’s reasoning
The judgment of October 1946 set out the IMT’s reasoning at length. The relevant passage, from the section on Keitel, ran:
Superior orders, even to a soldier, cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly, and without military excuse or justification. The true test is not the existence of the order, but whether moral choice was in fact possible.
The proposition is the source of the modern doctrine. The defendant’s defence is not foreclosed by the existence of an order; it is foreclosed by the absence of moral choice. If the defendant could have refused without losing his life, his defence fails. If he could have refused only at risk of his life, the defence may operate in mitigation. The test is fact-specific. It rests on the assessment of what the defendant could have done in the situation he faced.
The bench applied the test to the individual defendants and reached different conclusions. Keitel and Jodl, both convicted on all four counts and sentenced to death, were found to have had moral choice and to have made the wrong one. Speer, sentenced to twenty years, was found to have had moral choice in some respects but not in others. The lesser sentences for Schirach, Funk, Raeder, Dönitz and Neurath reflected gradations in the bench’s assessment of the moral choice each defendant had had at the relevant moments. The death sentences for Sauckel, Streicher, Frick, Frank, Rosenberg, Kaltenbrunner, Ribbentrop and Seyss-Inquart reflected the bench’s judgment that these men had had ample moral choice and had repeatedly made the wrong one.
The Einsatzgruppen and the Doctors’ cases
The framework the IMT established was applied more rigorously in the Subsequent Proceedings. The Einsatzgruppen Trial of 1947 to 1948 produced a series of judgments on the moral choice question that have been more influential than the IMT’s. The defendants in the Einsatzgruppen case had been the senior officers of the mobile killing units that had killed perhaps a million people on Soviet territory. Their defence was almost universally that they had been ordered to do the killing on Hitler’s authority and that to refuse would have meant execution. The court, presided over by Michael Musmanno, took the unusual step of investigating the empirical question. The court called witnesses on the actual treatment of SS officers who had refused to participate in the killings. The witnesses established that, in the documented record, no SS officer who had refused such an order had been executed for the refusal. The standard penalty for refusal had been transfer to a different unit. The defence accordingly failed on its facts. The judgment, in the cases of Otto Ohlendorf, Erich Naumann, Werner Braune and Paul Blobel, all of whom were sentenced to death and hanged at Landsberg in 1951, included reasoning on the moral choice question that has been quoted in every subsequent international war crimes proceeding involving the killing of civilians by uniformed personnel.
The Doctors’ Trial of 1946 to 1947 produced parallel reasoning. The defendant doctors had argued that they had been required by the state to perform the experiments and had had no realistic choice in the matter. The court’s investigation of the actual conditions under which doctors had been recruited established that participation in the experiments had been voluntary and had been treated, by the SS administration, as a career advancement opportunity. Several doctors who had been approached and had declined had not been punished for declining. The defence accordingly failed.
The Eichmann trial
The argument’s most consequential single restatement came at the Eichmann trial in Jerusalem in 1961. Eichmann’s defence was the orthodox superior orders defence in its most stripped-down form. He had organised the deportations on the order of his superiors. He had taken an oath of obedience to the Führer. He had no personal animus against Jews. He had simply done his job. Hannah Arendt’s account of the trial, Eichmann in Jerusalem (1963), reads the defence with characteristic philosophical seriousness and produces the famous formulation of the banality of evil: that Eichmann was not a monster but a careerist whose moral imagination had collapsed under the weight of his bureaucratic competence. The Jerusalem District Court, applying the post-Nuremberg framework, found the defence inadequate as a matter of law. Eichmann was sentenced to death and hanged in May 1962.
Arendt’s account has been criticised for understating the active antisemitism of Eichmann’s actual conduct (Bettina Stangneth’s Eichmann Before Jerusalem, 2014, draws on the Sassen tapes from Argentina to demonstrate Eichmann’s open ideological commitment in private). The wider doctrinal point Arendt was making, that the defence of obedience can be operationally accurate as a description of how a perpetrator experienced his own conduct, while remaining legally and morally inadequate as a defence, has held. The framework the IMT established at Nuremberg is the framework that produced the conviction at Jerusalem and that has produced the convictions in every subsequent international war crimes proceeding involving uniformed personnel.
The doctrine since Nuremberg
The Nuremberg Principles, adopted by the United Nations General Assembly in resolution 95(I) of December 1946 and codified by the International Law Commission in 1950, include as Principle IV: 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 principle has been incorporated into the statutes of the International Criminal Tribunal for the former Yugoslavia (Article 7), the International Criminal Tribunal for Rwanda (Article 6), and the International Criminal Court (Article 33 of the Rome Statute, with adjusted wording).
The wording in the Rome Statute is more permissive than the IMT’s. Article 33 provides a defence of superior orders for war crimes (though not for genocide or crimes against humanity) where the order was not manifestly unlawful and where the person was under a legal obligation to obey. The provision has been criticised by some commentators as a partial retreat from the Nuremberg standard. The criticism is fair. The retreat reflects the political compromise that allowed the Rome Statute to attract sufficient ratifications to come into force in 2002. It is the working law on the question. It is not the doctrine the IMT had established.
What the rejection of the defence has done
The rejection of the superior orders defence at Nuremberg has been one of the more practically consequential elements of the postwar legal order. It has changed the moral calculus of soldiers, doctors, lawyers and civil servants in conflict zones. A modern soldier accused of participating in atrocities cannot, in any forum that takes itself seriously, plead that he had been ordered to do it. He has to address the substance of what he did. The bar he has to clear is not the existence of an order. It is the existence of moral choice in the situation he faced.
The framework does not by itself produce moral conduct. Soldiers, doctors and civil servants continue to commit atrocities under orders. What it does is foreclose the legal route they would otherwise have for evading responsibility for those atrocities. It locates moral choice in the individual rather than in the chain of command. That is its most important practical effect, and it is its principal contribution to the long postwar attempt to make state-organised mass killing legally and morally answerable. The argument continues. The framework holds.
See also
- The Nuremberg Trials
- Adolf Eichmann
- The Einsatzgruppen
- The Eichmann Trial 1961
- Adolf Hitler
- The First World War Connection
Sources
- International Military Tribunal, Trial of the Major War Criminals, vol I (judgment), Nuremberg, 1947
- Trials of War Criminals before the Nuernberg Military Tribunals, vol IV (Einsatzgruppen case judgment), U.S. Government Printing Office, 1950
- Nuremberg Principles, International Law Commission, Yearbook of the International Law Commission, vol II, 1950
- Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Viking, 1963
- Bettina Stangneth, Eichmann Before Jerusalem, Knopf, 2014
- Yoram Dinstein, The Defence of Obedience to Superior Orders in International Law, Sijthoff, 1965
- Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline and the Law of War, Transaction, 1999
- Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, Cambridge University Press, 2009