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Superior orders (often known as the Nuremberg defense or lawful orders) is a plea in a court of law [1] that a soldier

not be held guilty for actions which were ordered by a superior officer. The superior orders plea is similar to the doctrine of respondeat superior in tort law where a superior is held liable for the [2] actions of a subordinate. Some legal scholars and war crimes tribunals will correlate the plea to the doctrine of respondeat superior; whereas others will distinguish the plea from the doctrine of respondeat superior. The superior orders plea is often regarded as the complement to command responsibility.

One of the most noted uses of this plea, or "defense," was by the accused in the 194546 Nuremberg Trials, such that it is also called the "Nuremberg defense". The Nuremberg Trials were a series of military tribunals, held by the main victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. It was during these trials, under the London Charter of the International Military Tribunal which set them up, that the defense of superior orders was no longer considered enough to escape punishment; [4] but merely enough to lessen punishment. Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with a notable lack of consistency in various rulings. Apart from the specific plea of Superior Orders, discussions about how the general concept of superior orders ought to be used, or ought not to be used, have taken place in various arguments, rulings and Statutes that have not necessarily been part of after the fact war crimes trials, strictly speaking. Nevertheless these discussions and related events help us understand the evolution of the specific plea of superior orders and the history of its usage. The superior orders defense is still used with the following rationale in the following scenario: An "order" may come from one's superior at the level of national law. But according to Nuremberg Principle IV, such an order is sometimes "unlawful" according to international law. Such an "unlawful order" presents a legal dilemma from which there is no legal escape: On one hand, a person who refuses such an unlawful order faces the possibility of legal punishment at the national level for refusing orders. On the other hand, a person who accepts such an unlawful order faces the possibility of legal punishment at the international level (e.g. Nuremberg Trials) for committing unlawful acts. Nuremberg Principle II responds to that dilemma by stating: "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who [33] committed the act from responsibility under international law." The above scenario might present a legal dilemma, but Nuremberg Principle IV speaks of "a moral choice" as being just as important as "legal" decisions: It states: "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". In "moral choices" or ethical dilemmas an ethical decision is often made by appealing to a "higher ethic" such as ethics in religion or secular ethics. One such "higher ethic," which is found in many religions and also in secular ethics, is the "ethic of reciprocity," or the Golden Rule. It states that one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others. "Higher ethics," such

as those, could be used by an individual to solve the legal dilemma presented by the superior orders defense. Another argument against the use of the superior orders defense is that it does not follow the traditional legal definitions and categories established under criminal law. Under criminal law, aprincipal is any actor [34] who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices, accessories orconspirators. (See also the various degrees of liability: absolute liability, strict liability, and mens rea.) Nuremberg Principle IV, the international law which counters the superior orders defense, is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Statuswhich was issued by the Office of the United Nations High Commissioner for Refugees (UNHCR). Those principles deal with the conditions under which conscientious objectors can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.

The thesis analyses how the two notions of superior responsibility and the defence of superior orders are related under current international criminal law. Superior responsibility and the defence of superior orders have been developed independently since the Nuremberg Trial. However, both doctrines have been categorized into a singular notion called individual responsibility, which seem to have emerged simultaneously after World War II. The two doctrines are sometimes heard in one case, where a commander charged with a crime who actually ordered such behaviour may raise a superior order defence. Sometimes a superior who issued illegal orders has to take responsibility for his own actions but also for his subordinates actions. The reason for this complication is that both doctrines only focus on one aspect of individual responsibility. Are the two concepts inter-related or inter-dependent? There is no fixed solution to this question. The focus of this thesis is to examine the relation between these different concepts. The aim of the paper is to address the reality and problems of the new concepts of individual responsibility established at Nuremberg and also assess the validity of the principles under current international criminal law. Although the individual approach, dealing with defendants independently, is widely accepted, the balance issue should be examined. To strike a balance between superiors and subordinates, superiors should also have opportunities to be mitigated under certain circumstances. This idea would be necessary to contribute a balanced approach. The possible conditions are presented to strike a balance between superiors and subordinates.