Evidence, Commentary, and Judgment

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5.3 Individual Responsibility and Nuclear Weapons

It is clear from the evidence presented, and the explanations of the Nuremberg Charter shown in Section 4.8 that individuals directly or indirectly participating in the formulation or execution of a common plan or conspiracy to commit crimes against peace, crimes against humanity, and war crimes can be held individually responsible. In addition, individuals have under international law, an affirmative duty to dissociate themselves from any participation or collusion in illegal nuclear policies.

The Nuremberg Tribunal quite clearly addressed that question and recognized throughout the proceedings that an individual has a duty to extricate oneself from a known violation of international law, even at the expense of violating domestic law.

During the Nuremberg hearings, there was the case of a German industrialist whose companies produced equipment used in committing crimes against humanity. The Tribunal determined there was individual responsibility under principles of international law, even though the acts committed did not violate (and in fact were in furtherance of) domestic law. "It is urged that individuals holding no public offices and not representing the state, do not and should not come within the class of persons criminally responsible for a breach of international law. It is asserted that international law is a matter wholly outside the work, interest and knowledge of private individuals. The distinction is unsound. International law, as such, binds every citizen just as does ordinary municipal law... the application of international law to individuals is no novelty" 17.

Professor Boyle took this argument further and proposed, in defence of individuals who lawfully, reasonably, and peacefully challenge their own government's unlawful nuclear policies even if it involves breaches of domestic law, that had the German industrial defendants prayed for peace in a German factory producing death ovens, they would have had a valid international law defence to a criminal trespassing charge, and would have had no fear of liability as war criminals before the Nuremberg Tribunal.

It is also quite clear to the Tribunal that individuals are unable to avail themselves of a defence based upon superior orders.


17 quoted by Professor Boyle as coming from [The Flick Case, 6 Trials of the Major War Criminals 1192 (1952)].

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