Superior orders
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.
[5] In 1474, in the trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire, the first known "international" recognition of commanders' obligations to act lawfully occurred.
[8] During the Second Boer War, four Australian officers (Breaker Morant, Peter Handcock, Henry Picton, and George Witton) were indicted and tried for a number of murders, including those of prisoners who had surrendered and been disarmed.
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.
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.
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,[13] 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.
[15] 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 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.
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 the lion's share of the guilt.
[16] 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.
Even so, dissatisfaction with the Leipzig trials is thought to be one of the main causes for the specific nullification of 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.
In most cases, the tribunal found that the defendants' offenses were so egregious that obedience to superior orders could not be considered a mitigating factor.
[21] 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.
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.
[clarification needed] 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 United States v. Keenan, the accused was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen.
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.
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.
Based on this principle, international law developed the concept of individual criminal liability for war crimes, which resulted in the current doctrine of command responsibility.
Nuremberg Principle IV, the international law that counters 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.
Those principles deal with 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.
