The Nuremberg Defense refers to a legal strategy employed by many of the defendants at the Nuremberg war crimes trials seeking to convict Nazi perpetrators of war crimes and crimes against humanity committed during the Second World War. Many of those defendants claimed that they were not guilty of the charges against them as they were "only following orders."
Adolf Eichmann was one of the most prominent Nazis to use this defense at his trial (held in Israel in 1961).
“”I cannot recognize the verdict of guilty. . . . It was my misfortune to become entangled in these atrocities. But these misdeeds did not happen according to my wishes. It was not my wish to slay people. . . . Once again I would stress that I am guilty of having been obedient, having subordinated myself to my official duties and the obligations of war service and my oath of allegiance and my oath of office, and in addition, once the war started, there was also martial law. . . . I did not persecute Jews with avidity and passion. That is what the government did. . . . At that time obedience was demanded, just as in the future it will also be demanded of the subordinate.
The Nuremberg Defense has since become a political and psychological meme. The term is now essentially synonymous with the phrase "I was only following orders", a phrase that has been used in defending accused war criminals for centuries. The phrase can refer to any attempt to deflect personal responsibility for a crime onto institutions like an army or the state. Occasionally, the Nuremberg Defense is referred to as the Eichmann defense.
Article 33 of the Rome Statute, which established the International Criminal Court, allows the Nuremberg defense to relieve an individual of criminal responsibility provided:
- The person was under a legal obligation to obey orders of the Government or the superior in question;
- The person did not know that the order was unlawful; and
- The order was not manifestly unlawful. In other words, you have to pass yourself off as having been ignorant of the law, but even that defense is not tolerated in especially gross cases.
This principle, one of many drawn up in the run up to the Nuremberg trials, states:
- "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."
Nuremberg Principle IV was disputed in Canada when Jeremy Hinzman attempted to claim refugee status there after deserting the US army. Hinzman and his supporters argued that because the war in Iraq may be in breach of international law, it could possibly end with him and other troops being tried for war crimes. Although he was denied refugee status, one Justice presiding over the case stated, in reference to personal responsibility during wartime:
- "An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper."
This has, however, long been the established rule for questions of the legality of war. A soldier is responsible for just conduct in war, and policy-makers are responsible for the just cause for war. However, if it can be found that policy-makers are pushing or forcing subordinates to act unjustly in war, they can be responsible for that as well. Even soldiers who are fighting in an unjust war must still be treated as legal combatants, and not held responsible for the war itself.