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Nuremberg defense

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English

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WOTD – 20 November 2019

Etymology

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The defendants in the dock at the major war criminals trial before the International Military Tribunal in Nuremberg, Bavaria, Germany, in November 1945
Some of the defendants conferring with each other and their lawyer (back to camera). From left to right, they are Rudolf Hess, Alfred Rosenberg, Hans Frank, Franz von Papen, Wilhelm Frick, and Albert Speer. During some of the Nuremberg trials the Nuremberg defense was raised, though under the Nuremberg Charter which set down the rules for the trials the argument could not relieve a defendant of criminal liability but only act as a mitigating factor to potentially lessen the punishment.

An allusion to a defense used by former Nazi officials prosecuted during the Nuremberg trials after World War II. The trials were held in Nuremberg in Bavaria, Germany.

Pronunciation

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Noun

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Nuremberg defense (plural Nuremberg defenses) (American spelling)

  1. (ethics, international law, idiomatic) An explanation offered as an excuse for behaving in a criminal or wrongful manner, claiming that one acted in this way because one was ordered by others (particularly superiors) to do so.
    Synonyms: lawful orders, superior orders
    • 1970 September, R. R. Baxter, “‘Nuremberg Defense’ Beclouded [letter]”, in Richard B. Allen, editor, ABA Journal: The Lawyer’s Magazine, volume 56, Chicago, Ill.: American Bar Association, →ISSN, →OCLC, page 818, column 2:
      “‘Nuremberg defense’, universally pleaded in war crimes trials,” is in actuality the Nuremberg nondefense, universally rejected in war crimes trials. It is a pity that the law of the Nuremberg Tribunal is so little understood after the passage of nearly a quarter of a century.
    • 1978, Stephen M. Kristovich, “United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense”, in California Law Review‎[1], volume 66, number 44, Berkeley, Calif.: University of California School of Law, →DOI, →ISSN, →OCLC, archived from the original on 4 September 2018, page 840:
      Recognition of the reliance on an official interpretation of the law defense for government officials and private citizens may initially seem to be the same as the Nuremberg defense of “I was just following orders.”
    • 2005 January 6, Laura Parker, “Court-martial begins for Abu Ghraib figure”, in USA Today‎[2], archived from the original on 21 May 2019:
      “It seems like he's [Charles Graner's] wanting to do the Nuremberg defense: ‘I was following orders,’” says Thomas Moran, a Houston attorney and a former military lawyer.
  2. (US law, by extension) An explanation offered as a defense to criminal or wrongful behavior, claiming that one is justified in not obeying a governmental order or a domestic law because the order or law is itself unlawful.
    • 1967, “The Nuremberg Defense”, in Congressional Quarterly Weekly Report, volume 25, part 2, Washington, D.C.: Congressional Quarterly, →ISSN, →OCLC, page 936, column 1:
      A relatively novel legal issue was raised by dissenters who contended that they did not so much oppose war in general as the Viet Nam war in particular. This contention, which became known as the Nuremberg defense, was raised by some young men who did not qualify as conscientious objectors and who were prosecuted for refusing to submit to induction.
    • 1980 January, Gary Komarow, “Individual Responsibility under International Law: The Nuremberg Principles in Domestic Legal Systems”, in The International and Comparative Law Quarterly, volume 29, number 1, London: British Institute of International and Comparative Law, →DOI, →ISSN, →OCLC, page 28:
      In United States v. Berrigan, a Federal court in Maryland laid down a legal blueprint for the treatment of war protest cases where an attempt was made to invoke the "Nuremberg defence." Father Philip Berrigan and three others stood charged with injuring the property of the United States Government, mutilating records filed in a public office of the United States, and hindering the administration of the Military Selective Service Act.
    • 1985 October, Jules Lobel, “The Limits of Constitutional Power: Conflicts between Foreign Policy and International Law”, in Virginia Law Review, volume 71, number 7, Charlottesville, Va.: Virginia Law Review Association, →DOI, →ISSN, →JSTOR, →OCLC, footnote 452, page 1158:
      Even during the Vietnam War, in the Pentagon Papers case, a standing objection would not have barred the assertion of a Nuremberg defense by those who committed the civil disobedience.
    • 1989 January, Frank Lawrence, “The Nuremberg Principles: A Defense for Political Protestors”, in Hastings Law Journal‎[3], volume 40, number 2, San Francisco, Calif.: Hastings College of the Law, University of California, →ISSN, →OCLC, archived from the original on 5 January 2019, part II (The Modern Nuremberg Defenses), pages 413–414 and 416:
      [pages 413–434] The modern Nuremberg Defenses are the antithesis of the original defense: criminal defendants today build a defense based on the reasoning and principles used by the Allied nations to convict Germans at Nuremberg. There are essentially two modern Nuremberg Defenses: the Citizen's Duty and the Citizen's Privilege. [...] Under the Citizen's Duty defense, defendants assert that they could be held liable for complicity with international crimes if they fail to take action to prevent such crimes. [...] [page 416] Under the Citizen's Privilege formulation of the Defense, the Nuremberg Principles are joined with the statutory and common law privileges allowing citizens to prevent crime. This then creates a "citizen's privilege" to break domestic law.
    • 1991 fall, Matthew Lippman, “Nuremberg: Forty Five Years Later”, in Connecticut Journal of International Law, volume 7, number 1, Hartford, Conn.: Connecticut Journal of International Law Association, →ISSN, →OCLC, page 1; republished in Guénaël Mettraux, editor, Perspectives on the Nuremberg Trial, Oxford: Oxford University Press, 2008, →ISBN, part IX (Lowering the Procedural Barriers: Recognizing the Nuremberg Defense for Political Protestors), page 539:
      The American judiciary's narrow interpetation of the standing requirement under the Nuremberg Principles has eviscerated the Nuremberg defense and limited its application to a narrow range of cases. [...] The judiciary, in rejecting defendants' standing to raise the Nuremberg defense, ignores the recognized privilege of citizen intervention to prevent the commission of a crime.
    • 2004, María José Falcón y Tella, “The Positive Aspect”, in Peter Muckley, transl., Civil Disobedience (Monographs on International Law and Human Rights; 7), Leiden: Martinus Nijhoff Publishers, →ISBN, page 216:
      An area in which one may indeed use the international defence, like the Nuremberg defence, though with little success, is opposition to nuclear weapons and other situations where civil disobedients set themselves against military combat. [...] Therefore, civil disobedients' interference in the production of weapons is not criminally culpable, but rather clearly excusable as avoiding the violation of a more serious law. Although this defence has had little success so far, it is worth brandishing and counts amongst the defences preferred by civil disobedients.

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Further reading

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