Superior orders

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, should not be considered guilty of committing crimes ordered by a superior officer or official. It is regarded as a complement to command responsibility.

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.

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.

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.

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 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 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 was sustained by the court, resulting in a guilty verdict against all four men. In a ruling still reviled by some in modern Australia 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 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 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 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".