Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. 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 committed the act from responsibility under international law. The fact that a person who committed an act which constitutes a crime under international law, acted as Head of State or responsible government official , does not relieve him from responsibility under international law.
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. This principle could be paraphrased as follows: "It is not an acceptable excuse to say 'I was just following my superior's orders'". Previous to the time of the Nuremberg Trials , this excuse was known in common parlance as " superior orders ". In recent times, a third term, " lawful orders " has become common parlance for some people.
Nuremberg Principle IV is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. 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. Any person charged with a crime under international law has the right to a fair trial on the facts and law. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
In the period just prior to the June 26, signing of the Charter of the United Nations , the governments participating in its drafting were opposed to conferring on the United Nations legislative power to enact binding rules of international law. As a corollary, they also rejected proposals to confer on the General Assembly the power to impose certain general conventions on states by some form of majority vote. There was, however, strong support for conferring on the General Assembly the more limited powers of study and recommendation, which led to the adoption of Article 13 in Chapter IV of the Charter.
The Nuremberg Principles were developed by UN organs under that limited mandate. Unlike treaty law, customary international law is not written. To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists a conviction in the international community that such practice is required as a matter of law.
For example, the Nuremberg Trials were a "practice" of the "international law" of the Nuremberg Principles; and that "practice" was supported by the international community. In this context, "practice" relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible. If this contrary practice is condemned by other states then the rule is confirmed. In , under UN General Assembly Resolution II , paragraph a , the International Law Commission was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.
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The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text above was adopted by the Commission at its second session.
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II, pp. Concerning Nuremberg Principle IV, and its reference to an individual's responsibility, it could be argued that a version of the Superior Orders defense can be found as a defense to international crimes in the Rome Statute of the International Criminal Court.
The Rome Statute was agreed upon in as the foundational document of the International Criminal Court, established to try those individuals accused of serious international crimes. Article 33, titled "Superior Orders and prescription of law,"  states:.
Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
Nuremberg Principle IV, and its reference to an individual's responsibility, was also at issue in Canada in the case of Hinzman v. Jeremy Hinzman was a U. Army deserter who claimed refugee status in Canada as a conscientious objector , one of many Iraq War resisters. Hinzman's lawyer, Jeffry House , had previously raised the issue of the legality of the Iraq War as having a bearing on their case.
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The Execution of Illegal Orders and International Criminal Responsibility
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