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What legal standards have courts used to judge 'following orders' defenses since Nuremberg?
Executive summary
Courts since Nuremberg have largely rejected a pure "just following orders" or superior‑orders defense, instead applying standards that assess whether orders were manifestly unlawful and whether the defendant knew or should have known they were illegal — principles reflected in Nuremberg Principle IV and echoed in later military and civilian jurisprudence [1] [2]. Contemporary U.S. military policy and post‑war case law adopt a duty-to-disobey formulation — for example, saying troops must refuse orders “a man of ordinary sense and understanding would know to be illegal” — showing continuity with Nuremberg-era reasoning [3] [2].
1. Nuremberg’s decisive rejection: “No escape in ‘I was following orders’”
The International Military Tribunal at Nuremberg refused to absolve defendants who claimed they acted only under superior orders, creating what became known as the “Nuremberg defense” and laying the groundwork for an individual responsibility principle under international law [2] [4]. The tribunal’s rulings and the huge documentary record now digitized at Harvard make clear the court treated obedience to orders as insufficient where the accused participated in crimes against peace, war crimes, or crimes against humanity [5] [6].
2. The Nuremberg Principles formalize a middle standard
Nuremberg Principle IV — distilled from the trials and later codified in international guidance — does not permit blanket immunity for obedience; it asks whether the person was under a legal duty to obey, whether they knew the order was unlawful, and treats orders to commit genocide or crimes against humanity as manifestly unlawful [1]. This framework effectively bars the superior‑orders defense for the gravest international crimes while leaving room for nuanced assessment in other contexts [1] [7].
3. How national militaries translated the lesson: duty to disobey
U.S. military practice after World War II and later case law adopt the Nuremberg lesson in practical terms: service members are expected to disobey orders that a reasonable person would understand to be illegal. Reporting notes that U.S. policy frames this as a duty to refuse orders “a man of ordinary sense and understanding would know to be illegal,” reflecting Nuremberg’s influence on military criminal responsibility [3] [2].
4. Judicial uses and limits — where courts diverge
While international tribunals and doctrine treat certain orders as manifestly unlawful, courts have not uniformly applied a single test beyond that threshold; some domestic courts and commentators have allowed limited room for a defense when the accused legitimately did not know the order was unlawful or when the order was not manifestly illegal [1] [7]. Scholarly and appellate debates continue over whether and when a version of the superior‑orders defense should protect lower‑level actors, particularly outside the core crimes of genocide and crimes against humanity [8] [1].
5. Post‑Nuremberg controversies and applications in practice
The “Nuremberg defense” label has been invoked both to bar and to justify claims in varied settings — from military courts to protester defenses — prompting courts to weigh state law, international norms, and factual knowledge of unlawfulness case by case [8] [1]. Public commemorations and legal forums marking Nuremberg’s anniversaries continue to rehearse these tensions and to argue for strengthening enforcement while recognizing political and legal limits [9] [10].
6. What available sources do not mention
Available sources do not mention a comprehensive, across‑jurisdiction catalog of post‑Nuremberg judicial decisions that apply or reject the superior‑orders defense in every domestic system, nor do they provide specific recent appellate opinions applying the exact phrasing “man of ordinary sense and understanding” beyond descriptive reporting (not found in current reporting). They also do not provide empirical statistics on how frequently courts accept any variant of the defense today (not found in current reporting).
7. Bottom line for readers and litigants
The firm takeaway from the cited reporting and archival material is that since Nuremberg courts have refused a blanket “following orders” escape and that modern practice — particularly in military law — imposes a duty to disobey manifestly illegal orders; however, subsequent jurisprudence leaves room for contextual factfinding about what a given defendant knew or should have known [2] [3] [1]. That mixture of categorical prohibition for the worst crimes and case‑specific assessment elsewhere is the enduring legal standard reflected in the sources examined [1] [5].