Formation of the ‘Nuremberg Principle’

Abstract

The judgment of the Nuremberg Trial of the Major War Criminals clearly denied immunity on the mere fact of orders and presented the possibility of ‘moral choice’ as the ‘true test’. However, the judgment did not explain what the notion of ‘moral choice’ concretely meant and whether immunity should be approved on this test. The Subsequent Proceedings held in the occupied zones of Germany further brought about serious conflict on the problem, and the Tokyo Trial did not resolve the confusion of the ‘principle’ on the superior orders defense. What can at least be said is that the ‘Nuremberg Principle’ on the superior orders defense denied automatic immunity on the ground of superior orders, which would objectively be deemed to be a rejection of the immunity of state acts and the absolute character of military discipline.