The “just following orders” defense at Nuremberg failed in every case where defendants tried it. The tribunal’s rule was straightforward: an order from a superior does not free a person from responsibility for war crimes or crimes against humanity, though it can be considered when setting the sentence. Whether the defense had any traction at all came down to a single question the judges asked of each defendant — could you have refused?
Article 8 of the London Charter
The rule was written into the tribunal’s foundational document. In August 1945, the United States, France, Great Britain, and the Soviet Union signed the London Charter creating the International Military Tribunal. Article 8 addressed superior orders directly: acting on orders from a government or a superior “shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”1Avalon Project. Charter of the International Military Tribunal
That language drew a hard line. Obedience could soften a sentence. It could never produce an acquittal. The Allied powers were announcing a principle: the chain of command does not override the obligation to behave like a human being.
The Moral Choice Test
The tribunal’s most lasting contribution to this question came in a single sentence of its final judgment on September 30, 1946. After noting that Article 8 reflected “the law of all nations” and that obedience had never been recognized as a defense to brutality under international law, the judges wrote: “The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.”2Avalon Project. Nuremberg Trial Proceedings Vol. 22 – Monday, 30 September 1946
The question was practical: could the defendant have said no? Genuine duress, meaning a credible and immediate threat of death or serious harm for refusing, could factor into the analysis. The bar was high. Discomfort, career consequences, or generalized fear of authority did not qualify. The tribunal looked for concrete evidence that a defendant tried to evade an order, expressed dissent, or took steps to minimize harm. Most defendants could show none of these things. Many had received promotions, decorations, and expanded authority as rewards for their participation.
Refusal Was Actually Possible
One of the most damaging pieces of evidence against the superior orders defense came not from legal theory but from history. Research into what actually happened to Germans who refused to participate in atrocities undermined the entire premise that disobedience meant death. Historians found no documented case of a German soldier or official being executed, imprisoned, or sent to a concentration camp for refusing to kill Jewish civilians or other targeted groups. In many units, officers openly told their men they could opt out of killing operations.
Reserve Police Battalion 101 offers a telling example. When the unit’s commander gave his men the choice to step aside if they found the work too difficult, fewer than 12 out of roughly 500 opted out. One man who demanded his release received it and was later promoted after returning to Germany. In another unit, three out of thirteen members consistently refused to participate in anti-Jewish operations. Nobody bothered them. There is even evidence that Heinrich Himmler issued orders permitting those who could not handle the killing to be excused from it.
This history mattered enormously for the moral choice test. If refusal was possible and survivable, the claim that defendants had no choice collapsed. At the Einsatzgruppen trial, defense counsel argued that unit leaders were merely “executive officers with instructions” who had no real possibility of blocking the execution of orders.3Harvard Law School Nuremberg Trials Project. Transcript for NMT 9: Einsatzgruppen Case The prosecution answered with evidence that the supposed impossibility of refusal was a myth. The tribunal agreed.
How Defendants Tried It Anyway
Nearly every major defendant at Nuremberg tried some version of the argument. Defendants generally acknowledged that the crimes occurred but denied personal responsibility, claiming they were following orders from higher authority.4United States Holocaust Memorial Museum. The Nuremberg Trials
Field Marshal Wilhelm Keitel, chief of the German Armed Forces High Command, admitted during cross-examination that he knew certain orders were illegal but believed he could not refuse the Supreme Commander. He recounted that Hitler’s final response to any objection was: “I do not know why you are worrying; after all, it is not your responsibility. I myself am solely responsible to the German people.”5Avalon Project. Nuremberg Trial Proceedings Volume 18 Keitel was convicted and executed.
General Alfred Jodl took a slightly different approach, claiming that particular phrasings in military correspondence signaled disagreement with an order. Letters beginning with “It is the carefully considered desire of the Führer” and ending with “The attached directives represent the Führer’s views” were supposedly coded language indicating the signatory objected but could not prevent execution of the command.5Avalon Project. Nuremberg Trial Proceedings Volume 18 The tribunal was unpersuaded. Jodl was also convicted and hanged. The pattern repeated across the dock: defendants who had wielded enormous power recast themselves as helpless functionaries, and the tribunal refused to accept it.
What Orders Could Still Do: Mitigation
Article 8’s language on this point is often overlooked. It does not simply reject the superior orders defense; it preserves a role for those orders at sentencing. If the tribunal determined that justice required it, evidence that a defendant acted under orders could reduce the punishment.1Avalon Project. Charter of the International Military Tribunal A conviction still stood, but the sentence might reflect the reality that a low-ranking soldier operating under severe institutional pressure occupies a different moral position than the architect of a policy of extermination.
In practice at Nuremberg, this mitigation avenue made little difference. The tribunal applied Article 8 strictly, and none of the twenty-one defendants in the main trial received meaningful sentence reductions based on superior orders.6The Judge Advocate General’s Legal Center and School. Practice Notes: Training the Defense of Superior Orders The defendants were too senior, too informed, and too willing for the argument to gain traction.
Does the Defense Work Today?
The Nuremberg rule outlived the tribunal. In 1950, the United Nations International Law Commission formalized the reasoning into the Nuremberg Principles. Principle IV states directly: “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.”7International Committee of the Red Cross. Principle IV
When the International Criminal Court was established by the Rome Statute in 1998, the drafters preserved the core rule while writing a narrow exception. Under Article 33, a person who commits a crime under orders can escape criminal responsibility only if all three conditions are met: the person was under a legal obligation to obey, the person did not know the order was unlawful, and the order was not manifestly unlawful.8International Criminal Court. Rome Statute of the International Criminal Court – Article 33
The second paragraph of Article 33 then closes the door on the most serious crimes: orders to commit genocide or crimes against humanity are automatically considered manifestly unlawful.8International Criminal Court. Rome Statute of the International Criminal Court – Article 33 The defense might conceivably apply to a narrow category of war crimes where a subordinate was genuinely deceived about the nature of what they were ordered to do. It can never apply to the kinds of large-scale atrocities that prompted the Nuremberg trials in the first place.
The precedent has filtered into domestic military law as well. In the United States, service members have an affirmative duty to disobey orders they know to be “patently illegal,” such as orders to kill civilians not participating in hostilities.6The Judge Advocate General’s Legal Center and School. Practice Notes: Training the Defense of Superior Orders The standard is whether a person of ordinary sense and understanding would recognize the order as unlawful. Orders are presumed lawful, and disobeying a lawful order is itself a criminal offense under military law. But obeying a manifestly unlawful order is also criminal, and no claim of obedience excuses carrying one out.