military oath, nuremberg, individual responsibility

DOMESTIC AND INTERNATIONAL LAW

The principle declared at Nuremberg in 1945: ‘Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.’

The chief prosecutor at Nuremberg, U.S. Supreme Court Justice Robert Jackson,
declared in his opening statement, “that four great nations, flushed with victory and stung
with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the
judgment of the law is one of the most significant tributes that Power has ever paid to
Reason.”
Emphasizing that the Nazi leaders embodied “sinister influences that will lurk in
the world long after their bodies have returned to dust,” Justice Jackson went on: “The
[Nuremberg] charter recognizes that one who has committed a criminal act may not take
refuge in superior orders nor in the doctrine that his crimes were acts of state.”
The four Geneva Conventions of 1949 codified many of the laws of war and established individual responsibility for grave breaches of them. In 1950, the International Law Commission (ILC), a body of legal experts acting at the direction of the UN, distilled the “Principles of the Nuremberg Tribunal.” The first of these was that “[a]ny person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.”


The military oath taken at the time of induction reads:

“I,____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God”

The Uniform Code of Military Justice (UCMJ) 809[890].ART.90 (20), makes it clear that military personnel need to obey the “lawful command of his superior officer,” 891.ART.91 (2), the “lawful order of a warrant officer”, 892.ART.92 (1) the “lawful general order”, 892.ART.92 (2) “lawful order”. In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking his oath when he blindly followed the commands of Ronald Reagan. As Inouye stated, “The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, ‘Members of the military have an obligation to disobey unlawful orders.’ This principle was considered so important that we–we, the government of the United States–proposed that it be internationally applied in the Nuremberg trials.” (Bill Moyers, “The Secret Government”, Seven Locks Press; also in the PBS 1987 documentary, “The Secret Government: The Constitution in Crisis.”)

Senator Inouye was referring to the Nuremberg trials in the post WW II era, when the U.S. tried Nazi war criminals and did not allow them to use the reason or excuse that they were only “following orders” as a defense for their war crimes which resulted in the deaths of millions of innocent men, women, and children. “In 1953, the Department of Defense adopted the principles of the Nuremberg Code as official policy” of the United States. (Hasting Center Report, March-April 1991)

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