Comments on the Nuremberg Principles and Conscientious Objection with Special Reference to War Crimes
Comments on the Nuremberg Principles and Conscientious Objection with Special Reference to War Crimes
Robert K . Woetzel
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COMMENTS ON THE
OBJECTION WITH SPECIAL
REFERENCE TO WAR CRIMES
ROBERT K. WOETZEL*
N ORDER TO ARRIVE at a balanced assessment of the current
applicability of the Nuremberg principles, the context in which the trials
were conducted should first be examined. Nuremberg took place at
a time when there was a breakdown of authority in Germany. The
bases of authority were being challenged within a frame of reference
of a basic conflict of values. The power preached by the Nazis provoked
a strong reaction which could readily be exemplified by the current
edict of youth: "Make love-not war!"
The Nuremberg principles state that an individual can be held
responsible for crimes against peace, crimes against humanity, war
crimes, and membership in criminal organizations. They were
unanimously endorsed by the United Nations in General Assembly
Resolution No. 95 (1) and reconfirmed in codified forms as of
December 12, 1950.1 They can be regarded as part of international law.
* President, Foundation for the Establishment of an International Criminal
Court, Professor of International Politics and Law, Boston College. A.B.,
Columbia University, 1952; Ph.D., Oxford University, 1958; J.S.D., Bonn University,
1 Principles of international law recognized in the Charter and Judgment of the
International Military Tribunal at Nuremberg as formulated by the International
Law Commission, June-July, 1950:
Principle I. Any person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment.
Principle I. The fact that internal law does not impose a penalty for an act
It is clear that the endorsement by the
United Nations of principles applied in
which constitutes a crime under international
law does not relieve the person who committed
the act from responsibility under international
Principle Ill. 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 tinder
Principle IV. The fact that a person acted
pursuant to order of his Government or of a
superior does not relieve him from
responsibility tinder international law, provided a moral
choice was in fact possible for him.
Principle V. Any person charged with a
crime Linder international law has the right to
a fair trial on the facts and law.
Principle VI. The crimes hereinafter set out
are punishable as crimes under international
a. Crimes against peace:
(i) Planning, preparing, initiation or
waging of a war of aggression or a war in
violation of international treaties, agreements or
(ii) Participation in a common plan or
conspiracy for the accomplishment of any of
the acts mentioned under (i).
b. War Crimes:
Violations of the laws or customs of war which
include, but are not limited to, murder,
illtreatment or deportation to slave-labor or for
any other purpose of civilian population of or
in occupied territory, murder or ill-treatment
of prisoners of war or persons on the seas,
killing of hostages, plunder of public or
private property, wanton destruction of cities,
towns or villages, or devastation not justified
by military necessity.
c. Crimes against humanity:
Murder, extermination, enslavement,
deportation and other inhuman acts done against any
civilian population, or persecutions on political,
racial or religious grounds, when such acts are
done or such persecutions are carried on in
execution of or in connection with any crime
against peace or any war crime.
Principle VII. Complicity in the commission
a war crimes trial constitutes tangible
evidence that the majority of nations at
that particular time recognized them as
valid principles of international law.
The Constitution of the United States
declares that treaties are part of the law
of the land.2 The Nuremberg principles
were contained in the London Agreement
of 1945 which set up the International
Military Tribunal (IMT) that tried the
major German war criminals. The
agreement, which has the force of a treaty, was
signed by the United States, Great Britain,
France, and the Soviet Union, and acceded
to by 19 other countries; it is part of the
law of the land."
While it is U.S. practice to regard the
most recent law as binding according to
the principle lex posterior derogat legi
priori4, no law since the London
agreement conflicts with its basic provisions.
In fact, U.S. leaders have time and again
declared their adherence to them. The
succeeding military tribunals at
Nuremberg confirmed them as did the IMT for
the Far East with only slight variations.5
The question arises to what extent the provisions of the Selective Service System
of a crime against humanity as set forth in
Principle V[ is a crime tinder international
2 U.S. CONST. art. Vt, § 2; see also DEP'T OF
ARMY, FIELD MANUAL 27-10, para. 7 (1956).
3 United States v. Pink, 296 U.S. 558 (1935).
4 See Cook v. United States, 288 U.S. 102
(1933); Hijo v. United States, 194 U.S. 315
(1904); Foster v. Neilson, 27 U.S. (2 Pet.) 254
B R. WOETZEL, THE NUREM1BERG TRIALS IN
INTERNATIONAL LAW 226-32 (1962).
conflict with the Nuremberg principles. 6
The IMT at Nuremberg did not deny the
jurisdiction of the State to institute
compulsory military service. Nor did the court
consider such service ipso facto a crime.
In the case of membership in criminal
organizations, the court required that it be
proven that an individual could be expected
to know of its criminal character, and
that he became or remained a member
voluntarily. 7 The Selective Service System
has not been condemned by any official
organ as in violation of international law.
Nor has any agency of the U.S.
Government. Membership in the U.S. armed
services, therefore, does not in itself
constitute an offense.
In United States v. Levy,8 it was shown
that the Green Berets have engaged in
activities that might be regarded as crimes
against humanity, e.g., such atrocities as
the severing of ears, etc. It may be that
participation in such actions constitutes a
violation of international law according to
the Nuremberg principles. This would not,
however, justify resistance to the draft
unless the organization in question had
been branded as a criminal one. Since no
such action has taken place, there is no
a priori case to be made out for refusing
to serve in the armed forces on grounds
of these principles.
Nevertheless, an issue of conscience
remains as long as a doubt exists about
the possibility or necessity of committing
criminal actions in the course of service.
6 Military Selective Service Act of 1967, 81 Stat.
102, 50 U.S.C. App. § 456(j) (1967).
7 See R. WOETZEL, supra note 5, at 192.
8 39 Court Martial Reports 672 (1969).
No international organ exists at this time
which could adjudicate claims against the
armed forces of a country. Under the
Geneva Conventions of 1949, states may
take jurisdiction over war crimes according
to the universal principle.9 Such liability
has not been extended to service as such.
In each case, guilt has to be proven. It
would seem that an individual could be
made liable for participation in criminal
acts under international law, while at the
same time he would have no recourse to
resist being forced into such actions.
In the event that the proportions of
criminality extend to genocide, an
international court could be constituted to try
such violations under the Genocide
Convention of 1948.10 The fact that the United
States and certain other countries have
not ratified the Genocide Convention does
not abrogate its universal character in view
of the fact that it codifies existing principles
of international law which were applied
at Nuremberg and confirmed by the United
In United States v. Mitchell,12 the court
refused to decide the question whether
or not the Vietnam War was in
violation of the Nuremberg principles. The
court-martial in Levy did consider
evidence with regard to the claim of crimes
against humanity but dismissed it as
in9 Four Geneva Conventions, in 75 UNITED
NATIONS TREATY SERIES. Nos. 970-73 [hereinafter
Four Geneva Conventions].
10 Convention on the Prevention and Punishment
of the Crime of Genocide, G.A. Res. 260, 3 U.N.
GAOR, at 174, U.N. Doc. A/810 (1948).
11 R. WOETZEL, supra note 5, at 232 et seq.
12 369 F.2d 323 (2d Cir. 1966).
sufficient. It would seem that the tribunal
was aware of the relevance of the
Nuremberg principles, even though it was not
convinced by the case for defense. The
intentions of an accused must be
considered in a criminal proceeding. It would
constitute a denial of justice to exclude
considerations of motivation bearing on his
Conscientious objection raises issues of
moral and psychological content. It may be
impossible to adjudicate disputes with
regard to crimes against peace without
sufficient evidence (which is difficult to obtain);
but the basis on which an accused who
resists Selective Service may have reached
his decision would still be relevant. His
ability to judge on the grounds of morality
and legality as deduced from available
sources, e.g., press notices, etc., might be
taken into account in assessing guilt. If
the average person can be expected to
resist certain orders which constitute war
crimes and crimes against humanity, the
same degree of competence must be
conceded in relation to the draft.
Courts could then decide whether or not
an individual might reasonably have
reached the conclusion that service in the
armed forces would lead him into crime
so-to-speak. A German liable to being
drafted into the S.S. might have thought
twice about alternatives. Also, while
criminal organizations like the S.S. were not
branded before the act, individuals were
made liable for joining or remaining
voluntarily in an organization which they
should have realized engaged in criminal
The Nuremberg principles are relevant,
therefore, to conscientious objection. For
justice to be mete out, it is necessary to
take into account facts that may have
motivated the individual. If by any
reasonable standard it cannot be shown that
available evidence worthy of consideration
justifies resistance, the individual would be
liable under our laws. So also would he
be if he did not resist participation in
criminal conspiracy or membership in a
criminal organization clearly recognizable
With special reference to the case of
Vietnam under consideration at the present
time, certain individuals have drawn
attention to the atrocities U.S. personnel in
Vietnam are alleged to have committed."5
On the other side, news reports have
acquainted the public with crimes communist
forces are alleged to have committed in
the Hue area. 14 Newspaper articles, TV
newsreels, etc. are not ipso facto evidence
from a legal standpoint. Too often, as
Marshal McLuhan has pointed out, the
medium becomes the message. But they
may influence public opinion and have
bearing, therefore, on motivation.
Aside from news reports, however, offi
cial pronouncements by the U.S.
Government indicate a great likelihood that various
crimes were committed by U.S. forces in the
My Lai-Songmy area.' 5 The indictment of
several members of the armed services
13 See, e.g., IN THE NAME OF AMERICA (1968).
14 Los Angeles Times, Dec. 6, 1969, pt. 1, at 1.
15 Los Angeles Times, Mar. 29, 1970, pt. H, at 8.
Nota bene: the statement by Lt. Gen. William
I can say . . . and I feel the public is entitled
to know, that our inquiry clearly established
that a tragedy of major proportions occurred
there on that day.
attests to a prima facie case at least as far
as the government is concerned. Such
evidence is weighty indeed when it comes
to the formation of conscience and must
be taken into consideration in assessing the
plausibility and bona fide nature of a
contention by a conscientious objector that
he may be forced to commit crimes by
allowing himself to be drafted with great
likelihood of being sent to Vietnam.
Judge Wyzanski of the U.S. District
Court in Boston ruled in United States v.
Sisson' (; that non-religious grounds for
conscientious objection should be taken into
consideration. The defense contended that
Sisson had the right to object to service in
the armed forces on grounds of the
Nuremberg principles with special reference to
the war in Vietnam. The separation of
Church and State stipulated in the first
amendment to the Constitution would
seem to indicate that both religious and
non-religious grounds for conscientious
objection should be allowed.1 7 The defense
of Nuremberg would constitute a
The issue is whether incidents like My
Lai were part of a plan in which an
individual might expect to become
enmeshed, regardless of official
condemnation. It has been alleged that the so-called
"search and destroy" strategy involved
methods of warfare condemned as criminal
under international law; and furthermore,
that My Lai was only one among many
outrages.1 8 The fact that high officers of
16 297 F. Supp. 902 (D.C. Mass. 1969).
17 U.S. CONST. amend. I; see also Welsh v.
United States, 90 S. Ct. 1792 (1970).
18 Falk, Songmy War Crimes and Individual
the Americal Division have been indicted
on various charges emanating from the
My Lai incident might lend credence to
the charge that it was tolerated. In any
event, an average person might reasonably
question the legality of certain operations
in Vietnam and refuse to become
implicated on the grounds of the Nuremberg
The character of the war, whether or not
it is international, is irrelevant. If the war
has international implications, as the U.S.
maintains with regard to the involvement
of North Vietnam, the laws of war apply
including the Geneva Conventions of
1949.111 On the other hand, if it is held to
be a civil war, the Conventions provide a
minimum set of obligations for such
situations.211 Civilian victims of war crimes who
are nationals of states maintaining
diplomatic representation in the states whose
nationals are the alleged criminals are not
"protected" by the Convention according to
Article 4.21 This is no objection since the
Convention is part of the law of war and
does not abrograte other instruments of
international law like the Nuremberg
principles according to which the kind of
actions alleged to have been committed at
My Lai may be considered as crimes against
No confusion should, therefore, be
possible in the mind of the average observer
Responsibility-A Legal Memorandum,
TRANsACTION, Jan. 1970, at 39-40.
19 See Four Geneva Conventions.
21 See Geneva Convention Relative to the
Protection of Civilian Persons in Time of War of
August 12, 1949, in Four Geneva Conventions.
22 See note 1 supra.
as to the applicability of standards of
international law which proscribe such actions.
The fact that insufficient information about
the laws of war might have been circulated
would make the State liable for shirking its
obligations under the Geneva Conventions,
but would not be an excuse for an
individual accused of violations. Nor would
the defense of Act of State or superior
orders, when moral choice was possible.
The nature of guerilla warfare in Vietnam
would have bearing only insofar as the
question of moral choice was involved.
Military necessity or "Kriegsraison" would be
no defense, according to Nuremberg.
Neither would the fact that the enemy had
committed similar offenses or tu quoque.2.3
The mention in the codified Nuremberg
principles of the necessity of taking into
account moral choice would seem to indicate
that a dimension essential for the arriving
at a conclusion in cases of conscientious
objection, namely the examination of belief,
according to provisions of the Selective
Service Act of 1969, is part of international
law. The defense of superior orders must
be related to whether a person had
reasonable grounds to believe that an order was
unlawful, in order to arrive at a moral
choice before determining if it was indeed
possible to implement it. In that sense,
conscientious objection may derive some
protection from the Nuremberg principles
which by implication demand moral choice
2 For discussion see R. WOETZEL, supra note 5.
See also the judgment by Col. P. Wondolo in the
general court-martial of IstLt. James B. Duffy.
It was ruled that he could not be considered
innocent on the ground that he was following policy
laid down by superior officers. Los Angeles
Times, Mar. 29, 1970, pt. B, at 2.
in cases involving violations of the laws of
A special problem arises when a person
wishes to become a conscientious objector
after he has been inducted into the armed
services. Voluntarily remaining a member
of a criminal organization makes a person
liable, according to Nuremberg. A person
may choose to become a conscientious
objector upon observing actions which
reasonably appear to him to be violations of
international law. Options would seem to be
mandatory both under military law which
incorporates the international laws of war,
and according to the Nuremberg principles.
A person has the right and obligation to
exercise his moral choice regardless of
superior orders. A change of status should
always be possible.
Finally, it must be remembered that
regardless of the bestial character of war, the
laws of war attempt to salvage whatever
humanitarian restraint is possible under
such conditions. 24 While war of one kind
or another may continue, and there have
been over one hundred armed conflicts
since the end of World War II alone,
Nuremberg represents a milestone on the
road to universalization of concern with
crimes that may be committed. The fact
that the Geneva Conventions apply
universal jurisdiction to war crimes is evidence
of international concern with the universal
24 This is so regardless of the legal character of
the war, and whether or not it is a war of
aggression which is difficult to determine. Conscientious
objection usually does not involve participation
at a level of responsibility constituting crimes
against peace. For discussion see Woetzel, supra
note 5, at ch. 6. Ordinary soldiers are not
maintenance of the humanitarian restraints
of war. They apply not only to interstate
relations but to relations between a
government and its citizens in cases of armed
conflict not of an international character.
The nature of the argument regarding
conscientious objection goes to the roots
of our moral convictions. Nuremberg lights
the way to greater moral awareness in a
world community dedicated to the
proposition of uniform civilized standards. The
choice is never between national or personal
survival and a course which involves crimes
against international law; it can only be
between lawful conduct of military operations
on the one hand, and anarchistic violence
which is a threat both to moral values and
military discipline, on the other. Far from
weakening national defense, it is the highest
patriotic and human duty to resist the latter
lest the nation fall prey to the shame and
ignominy of barbarism.