How did Nuremberg and Tokyo war crimes tribunals influence U.S. military law on unlawful orders?
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Executive summary
The Nuremberg and Tokyo tribunals established that "just following orders" is not an absolute defense for war crimes, a doctrinal shift that directly influenced U.S. military law by narrowing the permissible scope of obedience and shaping the "manifest illegality" standard used in American military jurisprudence [1] [2] [3]. At the same time, critics and legal historians point out that procedural inconsistencies and perceptions of "victor’s justice" at those tribunals complicated their legacy and produced contested implementations within U.S. practice [4] [5].
1. How Nuremberg and Tokyo rewrote individual responsibility
The London Charter and the charters underlying the Nuremberg and Tokyo trials rejected superior orders as an absolute shield, articulating individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity and thereby creating the legal premise that obedience cannot automatically absolve wrongdoing [6] [2]. The U.S. State Department and subsequent legal commentary have credited the two tribunals with a formative role in developing international criminal law and establishing the idea that leaders and subordinates alike may be prosecuted for serious violations [1] [2].
2. From international principle to U.S. military practice — "manifest illegality"
American military law did not adopt an all-or-nothing rule; instead, U.S. jurisprudence and doctrine absorbed the tribunals’ core judgment while calibrating it into a practicable standard: service members must disobey orders only when they are “manifestly” or “patently” illegal, a narrower test designed to preserve discipline while preventing obvious atrocities [3] [7] [8]. Scholars and DoD guidance emphasize that the Nuremberg legacy narrowed, rather than eliminated, the superior‑orders defense — leaving room for mitigation in some cases but foreclosing complete immunity when an order is clearly unlawful [8] [3].
3. Case law and military tribunals show the translation and tension
U.S. military tribunals at Nuremberg, subsequent U.S. trials, and later American court‑martials demonstrate both the enforcement of command responsibility and the difficulties of doctrinal application: the High Command cases and individual prosecutions made clear that commanders could be held for permitting or failing to stop crimes, yet fact‑intensive inquiries into knowledge and authority produced uneven outcomes and legal debate [9] [10] [8]. Legal analyses note that even while Nuremberg disallowed blind reliance on orders, tribunals often treated superior‑orders evidence variably — sometimes as a mitigator, sometimes as no defense at all — creating precedents U.S. military lawyers had to reconcile [8] [5].
4. Political context and critiques: victor’s justice and procedural inconsistency
Contemporary and later critics described the tribunals as instruments of "victor’s justice," pointing to procedural looseness, selective prosecutions, and differences between Nuremberg and Tokyo procedures as evidence that legal precedent came bundled with political aims — an observation that complicated wholesale adoption of tribunal doctrines into U.S. practice [4] [5]. Scholars warn that procedural flexibility at Tokyo and Nuremberg produced risks of abuse and unpredictability, which in turn pushed U.S. doctrine toward a more constrained, militarily sustainable rule [5] [4].
5. Enduring legacy and limits of influence
The net effect is durable but qualified: Nuremberg and Tokyo stamped the principle that obedience does not excuse manifestly illegal conduct into both international law and U.S. military doctrine, while U.S. practice refined that principle into a "manifest illegality" threshold to balance individual responsibility with military necessity [2] [3]. Reporting and scholarship also make clear that questions remain about application and consistency — the tribunals’ moral and legal authority shaped U.S. rules, but the practical, contested work of translating international judgments into clear, enforceable military rules has been uneven and politically fraught [1] [5] [4].