The defendants and their lawyers raised serious legal and moral arguments. Some were self-serving; others raised questions that still trouble international justice. Understanding them is essential to judging the trial fairly.

“We were only following orders”

The most famous defense was that of superior orders. Military officers such as Keitel and Jodl argued that as soldiers they had a duty to obey their commander, Hitler, and that disobedience in wartime could mean death. The charter had already excluded superior orders as a full defense. The tribunal explained why: the test was not whether an order had been given but whether a moral choice was in fact possible. Senior leaders who helped plan and direct crimes could not claim they were merely obeying. Ohlendorf's testimony, in which he described commanding the killing of tens of thousands, showed how far the defense could be stretched.

“You did it too”

Defense lawyers argued that the Allies had committed similar acts. This argument is known by the Latin phrase tu quoque, “you also.” They pointed to Allied bombing of German cities, which killed hundreds of thousands of civilians, the Soviet invasion of Poland in 1939 and of Finland, and the forced expulsions of Germans from Eastern Europe that were under way during the trial itself.

The tribunal generally refused to hear such arguments, holding that the crimes of others did not excuse the defendants' own. But one case stands out. Admiral Karl Dönitz was charged with waging unrestricted submarine warfare, attacking merchant ships without warning. His lawyer obtained a statement from the American admiral Chester Nimitz confirming that the United States had waged the same kind of submarine warfare against Japan in the Pacific. The tribunal convicted Dönitz on other grounds but did not base his sentence on the submarine warfare charge, an implicit acknowledgment of the point.

Katyn

The most uncomfortable episode concerned the Katyn massacre. In the spring of 1940, the Soviet secret police shot thousands of Polish officers and other prisoners in the Katyn forest and elsewhere, about 22,000 people in all. When German forces discovered the mass graves in 1943, the Soviet Union blamed Germany. At Nuremberg, the Soviet prosecution included Katyn in the indictment as a German crime. The defense called witnesses who cast doubt on the charge. The tribunal heard the evidence and then left Katyn out of its judgment entirely, without explanation. In 1990, the Soviet government finally admitted that its own forces had carried out the massacre.

“There was no such law”

As Level 2 described, the defense argued that crimes against peace and crimes against humanity had been created after the fact, violating the principle that no one should be punished except under a law that existed when the act was committed. The tribunal answered that aggressive war had been outlawed by treaties such as the Kellogg-Briand Pact, and that the principle against retroactive law is a principle of justice, not a shield for those who knew their acts were wrong.

“Victors' justice”

Underlying many arguments was the charge of victors' justice: the judges and prosecutors all came from the winning side, which was judging only the crimes of the losers. Göring said so directly. The presence of Soviet judges and prosecutors, representing a regime that had itself committed mass atrocities, strengthened the point.

Göring's defense

Göring, the most forceful defendant, mounted a defense that was part legal argument and part political performance. He admitted much, defended Hitler and the regime's aims, and argued that a sovereign state may wage war as it sees fit. He also denied knowledge of the extermination of the Jews, a claim the evidence contradicted. Observers noted that in his sparring with Jackson, Göring showed how a skilled defendant could use a courtroom to defend his cause, exactly what those who had favored summary execution had feared.

Worked example: the soldier's dilemma

Consider a hypothetical case to test the superior orders principle. A young soldier in an occupied village is ordered by his captain to shoot a group of unarmed civilians. He believes that if he refuses, he may be punished severely. What responsibility does he bear?

• Was the order clearly unlawful? Yes. Killing unarmed civilians is obviously criminal, not a matter of doubtful legality.
• Was a moral choice possible? This is the tribunal's test. Research by later historians found that German soldiers and police who refused to take part in mass shootings were usually reassigned or reprimanded, and in documented cases very rarely suffered death or severe punishment for refusing.
• Does rank matter? A private under direct threat bears less responsibility than the captain who gave the order, and far less than the leaders who designed the policy.
• Mitigation. Under the charter, orders could reduce punishment, but not remove guilt.

The lesson is that obedience does not cancel conscience. Every person, at every rank, retains a duty to refuse clearly criminal orders. This idea is now written into military law in many countries. It also expresses a basic principle of human dignity: no one may be used as a mere instrument for murder, and no one may excuse their participation by pretending they were only an instrument.