Superior orders

Defendants in the dock at the Nuremberg trials

Superior orders, also known as just following orders or the Nuremberg defense, is a plea in a court of law that a person, whether civilian, military or police, can be considered guilty of committing crimes ordered by a superior officer or official.[1][2] It is regarded as a complement to command responsibility.[3]

One noted use of this plea or defense was by the accused in the 1945–1946 Nuremberg trials. These were a series of military tribunals held by the main victorious Allies of World War II to prosecute, among others, prominent members of the political, military and economic leadership of the defeated Nazi Germany. Under the London Charter of the International Military Tribunal that established them, the trials determined that the defense of superior orders was no longer enough to escape punishment but merely enough to lessen it.[4]

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.[5]

  1. ^ See L.C. Green, Superior Orders in National and International Law, (A. W. Sijthoff International Publishing Co., Netherlands, 1976)
  2. ^ Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, (Transactions Publishers, New Brunswick, N.J., 1999).
  3. ^ See James B. Insco, Defense of Superior Orders Before Military Commissions, Duke Journal of Comparative and International Law, 13 DUKEJCIL 389 (Spring, 2003). Asserting in the author's view that a respondeat superior approach to superior orders is an "underinclusive extreme".
  4. ^ H. T. King Jr., The Legacy of Nuremberg, Case Western Journal of International Law, Vol. 34. (Fall 2002) at p. 335.e
  5. ^ "Situation In The Democratic Republic Of The Congo In The Case Of The Prosecutor V. Bosco Ntaganda" (PDF). icc-cpi.int. International Criminal Court. 30 March 2021. Archived (PDF) from the original on 15 July 2022. Retrieved 18 October 2022.