How did the Nuremberg Trials shape prosecutions for unlawful military orders?
Executive summary
The Nuremberg Trials established that "just following orders" is not an automatic shield from criminal responsibility, embedding individual accountability into postwar international law through the London Charter and subsequent Nuremberg Principles [1] [2]. That legal turn clarified limits—recognizing narrow duress and manifest-illegality exceptions—while sparking debate about ex post facto law, victor’s justice, and how command responsibility would be applied in later military prosecutions [3] [4] [5].
1. The legal pivot: London Charter and the rejection of superior orders
At the heart of Nuremberg’s influence was the London Charter, negotiated by the Allied powers, which explicitly removed the wholesale protection of following superior orders as a defense to war crimes and crimes against humanity, marking a decisive legal pivot from earlier, inconsistent practice [1] [6]. Chief U.S. prosecutor Robert H. Jackson pushed that the Charter embodied individual responsibility for grave breaches—“the first time” the victorious states agreed to hold individuals, not just states, accountable for aggressive war and associated crimes—which set a template for later tribunals [6] [7].
2. What the courts actually said: limits, exceptions and the “manifestly unlawful” standard
Nuremberg judges did not decree absolute liability; they and later tribunals acknowledged narrow exceptions, notably where a subordinate acted under immediate threat of death or serious harm—a principle applied in the Einsatzgruppen judgment and explained in contemporaneous pedagogical materials [3]. The Nuremberg Principles later distilled the standard: orders to commit genocide or crimes against humanity are manifestly unlawful, but other contexts allow limited defenses if the defendant neither knew nor was obliged to obey—introducing the “manifestly unlawful” threshold that continues to complicate prosecutions [2].
3. From principle to practice: command responsibility and selective enforcement
Beyond the superior‑orders bar, Nuremberg advanced the doctrine of command responsibility—officers could be held criminally liable for failing to prevent or punish subordinate crimes—yet the trials’ application was uneven, as seen in successor proceedings where judges weighed evidence of knowledge, authority, and overt acts in determining culpability [5] [8]. That unevenness fed later critiques that Nuremberg created “new enforcement” rather than novel law, a distinction defenders and critics still cite when tracing the genealogy of prosecutions like those in U.S. military courts [9].
4. Institutional legacy: law, training and military codes
Nuremberg’s rejection of superior orders influenced military law and doctrine worldwide: subsequent international instruments, national codes, and military training emphasized a duty to disobey unlawful orders and the criminal exposure that can follow, a point restated by human‑rights and military commentators who note that service members today are trained to recognize and refuse manifestly illegal commands [10] [11]. Courts and militaries, however, retained the careful balancing tests forged at Nuremberg—duress, knowledge, and manifest illegality—rather than a simple bright‑line prohibition [2] [3].
5. The political backlash and enduring controversies
Nuremberg’s jurisprudence also provoked sharp objections—charges of ex post facto law and victor’s justice—that the trials invented crimes or applied retroactive standards, critiques famously aired in contemporary commentary and still invoked by skeptics of international criminalization of military conduct [4]. Those political critiques exposed an implicit Allied agenda: to delegitimize Nazi elites and create a pedagogical record, which shaped prosecutorial choices and fueled debates over fairness versus moral imperative [6] [8].
6. How Nuremberg shapes modern prosecutions in practice
Modern tribunals and national courts continue to build on Nuremberg’s architecture: they deny a blanket superior‑orders defense, apply the manifest‑illegality and duress exceptions, and use command‑responsibility doctrines to prosecute planners, commanders, and direct perpetrators, while grappling with evidentiary burdens and political constraints that Nuremberg first exposed [2] [5]. Where gaps remain in the sources used here, particularly about specific post‑Nuremberg case law beyond the cited summaries, reporting limits preclude comprehensive cataloguing of every doctrinal evolution.