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63-562: 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,

126-429: A moral choice was in fact possible to him". In moral choices or ethical dilemmas a decision is often made by appealing to a "higher ethic". One found in many religions and in secular ethics is the ethic of reciprocity , or Golden Rule . It states that one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others. Although messengers are not usually responsible for

189-798: A professional head of the Imperial Navy , similar to the First Sea Lord , was not established until August 1918. After the war and the German Revolution of 1918–19 , the Admiralty Staff became subordinate to the Naval Office and was finally disestablished by order of the German President . The Admiralty Staff had, in principle, overall operational authority over the navy during wartime. In practice this

252-465: 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

315-542: 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

378-730: 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. In 1957,

441-400: A defendant may also raise a defense of justification – such as self-defense and defense of others or defense of property . In English law , one could raise the argument of a contramandatum , which was an argument that the plaintiff had no cause for complaint. The defense in a homicide case may attempt to present evidence of the victim's character, to try to prove that the victim had

504-492: A defense is raised by the defendant in a direct attempt to avoid what would otherwise result in liability, the defendant typically holds the burden of proof . For example, a defendant who is charged with assault may claim provocation , but they would need to prove that the plaintiff had provoked the defendant. In common law , a defendant may raise any of the numerous defenses to limit or avoid liability. These include: In addition to defenses against prosecution and liability,

567-661: 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. During the Second Boer War , four Australian officers ( Breaker Morant , Peter Handcock , Henry Picton, and George Witton ) were indicted and tried for

630-530: A history of violence or of making threats of violence that suggest a violent character. The goal of presenting character evidence about the victim may be to make more plausible a claim of self-defense , or in the hope of accomplishing jury nullification in which a jury acquits a guilty defendant despite its belief that the defendant committed a criminal act. Litigation is expensive and often may last for months or years. Parties can finance their litigation and pay for their attorneys' fees or other legal costs in

693-464: 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

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756-454: 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

819-475: A number of ways. A defendant can pay with their own money, through legal defense funds, or legal financing companies. For example, in the United Kingdom, a defendant's legal fees may be covered by legal aid . This legal term article is a stub . You can help Misplaced Pages by expanding it . German Imperial Admiralty Staff The German Imperial Admiralty Staff ( German : Admiralstab )

882-467: A penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law." This might present a legal dilemma, but Nuremberg Principle IV speaks of "a moral choice" as being just as important as legal decisions: "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

945-472: Is because God's law (i.e. morality ) supersedes human law. Another argument against the use of the superior orders defense is that it does not follow the traditional legal definitions and categories established under criminal law , where a principal is any actor who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices , accessories or conspirators . (See also

1008-545: 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: 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. During the Nuremberg Trials, Wilhelm Keitel , Alfred Jodl , and other defendants unsuccessfully used

1071-571: Is otherwise proper. 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. 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

1134-403: Is put forward by a party to defeat a suit or action brought against the party, and may be based on legal grounds or on factual claims. Besides contesting the accuracy of an allegation made against the defendant in the proceeding, the defendant may also make allegations against the prosecutor or plaintiff or raise a defense, arguing that, even if the allegations against the defendant are true,

1197-515: Is sometimes "unlawful" according to international law. Such an "unlawful order" presents a legal dilemma from which there is no legal escape: On one hand, a person who refuses such an unlawful order faces the possibility of legal punishment at the national level . On the other hand, a person who accepts such an unlawful order faces the possibility of legal punishment at the international level . Nuremberg Principle II responds to that dilemma by stating: "The fact that internal law does not impose

1260-528: The Reichstag parliament in 1898 passed a new Naval Law , according to which the High Command was, on 14 March 1899, replaced by the Admiralty Staff responsible for planning, officer training, and naval intelligence. In time of war the Admiralty Staff was to assume overall command of the Imperial Navy, although in peacetime it acted only in an advisory capacity. Direct control of the various elements of

1323-520: 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

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1386-813: 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

1449-519: 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"

1512-601: 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

1575-426: 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

1638-537: 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

1701-498: 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." 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

1764-462: 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" ( "Befehl ist Befehl" , 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

1827-732: 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

1890-544: 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

1953-568: 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. The defense of superior orders again arose in the 1961 trial of Nazi war criminal Adolf Eichmann in Israel , as well as

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2016-634: The accession of Emperor Wilhelm II in 1888, the naval forces strongly gained in importance. Soon after, the command structure was reorganized with the establishment of the Imperial Naval Cabinet, the German Imperial Naval High Command ( Kaiserliches Oberkommando der Marine ) and the Naval Office, from 1897 under State Secretary Alfred von Tirpitz . In the course of the Anglo-German naval arms race ,

2079-417: The burst hit. 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. The superior orders defense is still used with the following rationale in the following scenario: An "order" may come from one's superior at the level of national law. But according to Nuremberg Principle IV, such an order

2142-511: 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

2205-454: The concept of individual criminal liability for war crimes, which resulted in the current doctrine of command responsibility. 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

2268-435: The conditions under which conscientious objectors can apply for refugee status in another country if they face persecution in their own for refusing to participate in an illegal war. Defense (legal) In a civil proceeding or criminal prosecution under the common law or under statute , a defendant may raise a defense (or defence ) in an effort to avert civil liability or criminal conviction. A defense

2331-495: The content of messages, the Babylonian Talmud (3rd to 5th century corpus of Jewish law ) states, "There is no messenger in a case of sin." Joseph Telushkin interprets the precept to mean that "if a person is sent to perform an evil act, he cannot defend his behavior by saying he was only acting as another's messenger. ... [T]he person who carries out the evil act bears responsibility for the evil he or she does." This

2394-402: The defendant is nevertheless not liable. Acceptance of a defense by the court completely exonerates the defendant and not merely mitigates the liability. The defense phase of a trial occurs after the prosecution phase, that is, after the prosecution "rests". Other parts of the defense include the opening and closing arguments and the cross-examination during the prosecution phase. Since

2457-427: 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

2520-602: 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 Führerprinzip (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

2583-534: 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. In 1474, in the trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire ,

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2646-409: 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

2709-457: The fleet was subordinated to officers commanding those elements, accountable to the Kaiser . This reorganization suited Wilhelm II, who wanted to maintain direct control of his ships. A disadvantage was that it split apart the integrated military command structure, which before had balanced the importance of the navy within overall defense considerations. It also suited Tirpitz, because it removed

2772-453: 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

2835-515: The influence of the admiralty staff from naval planning, but it left him the possibility, in wartime, to reorganise command around himself. Wilhelm II, however, never agreed to relinquish direct control of his fleet. During WWI, under the successive control of Admirals Hugo von Pohl , Gustav Bachmann and Henning von Holtzendorff , the Admiralty Staff closely directed German efforts at submarine commerce raiding, pushing strongly and repeatedly for unrestricted submarine warfare . The decisions made by

2898-414: 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

2961-516: 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

3024-482: 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

3087-411: 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

3150-547: The only ones in the world that recognize that legal defence. 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: Nuremberg Principle IV , and its reference to an individual's responsibility, was at issue in Canada in

3213-400: 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. The trials gained so much attention that

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3276-400: The order, Corporal Luczko, was acquitted by reason of insanity. 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

3339-509: The refugee status claim. In the decision, Justice Anne L. Mactavish addressed the issue of personal responsibility: 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

3402-847: 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

3465-548: 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 . On October 8, 1945, Anton Dostler was the first German general to be tried for war crimes by a US military tribunal at

3528-726: The superior orders defense, is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights that deal indirectly with conscientious objection . It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status , which was issued by the Office of the United Nations High Commissioner for Refugees (UNHCR). Those principles deal with

3591-417: 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 Befehlsnotstand (English: compulsion to obey orders ),

3654-513: The trials determined that the defense of superior orders was no longer enough to escape punishment but merely enough to lessen it. 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

3717-416: The various degrees of liability: absolute liability , strict liability , and mens rea .) The common argument is that every individual under orders should be bound by law to immediately relieve of command an officer who gives an obviously unlawful order to their troops. This represents a rational check against organizational command hierarchies. Nuremberg Principle IV, the international law that counters

3780-839: Was diluted by the ability of subordinate station commands (such as the High Seas Fleet ) to execute control over their own ships, and the ability of the Kaiser to override their directives. After the German unification of 1871, a united Imperial Navy was established as successor of the Prussian Navy and the North German Federal Navy , from 1 January 1872 under the authority of the German Imperial Admiralty ( Kaiserliche Admiralität ) led by Minister of State Albrecht von Stosch . With

3843-830: Was one of four command agencies for the administration of the Imperial German Navy from 1899 to 1918. While the German Emperor Wilhelm II as commander-in-chief exercised supreme operational command and control of the naval forces, the military staff was split into the Admiralty, the Naval Office , the Naval Cabinet , and the Inspector-General . The command structure had a negative impact on German naval warfare in World War I , as

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3906-500: Was sustained by the court, resulting in a guilty verdict against all four men. In a ruling still reviled in modern South Africa 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. On June 4, 1921, the legal limits of superior orders were tested during

3969-629: 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 . In 1945–46, during

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