In response to:
The Ultra-Resistance from the September 25, 1969 issue
To the Editors:
Some of my testimony at the trial of the “Milwaukee Fourteen” was garbled in the court transcript. Hence the quotation in Francine du Plessix Gray’s article [NYR, Spetember 25, p. 17] could convey the erroneous impression that the Nuremberg International Tribunal left it to the individual to obey international law, or to obey rules of his Government that violate international law. This was not my testimony.
The Tribunal’s famous “moral choice” doctrine is that an individual who was ordered to commit an international wrong will be internationally responsible for obeying the order if a “moral choice” not to obey it existed for him—that is, if by the rules of morality he had a realistic choice. The gist of my testimony was: The International Tribunal at Nuremberg, at which the United States was represented, stated that it is the moral choice of the individual that counts. Obedience to the higher, the world order, is more important. He should feel that, and always endeavor not to violate it. If such moral choice is in fact not possible for him, he will not be personally punishable for violating the international rule. But if he feels that he must make the choice even at personal risk, then he has to make the moral choice and do the things he considers morally proper. That is the great ethical and moral message of Nuremberg.
For the benefit of readers, I quote pertinent passages from the Judgment:
…the very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance to the authority of the state if the state in authorizing action moves outside its competence under international law…. The true test…is not the existence of the order, but whether moral choice was in fact possible.
(Trial of the Major War Criminals…Nuremberg, 1945/6. Vol. I, pp. 223/4.)
John H. E. Fried
Professor of Political Science,
Lehman College and Graduate Faculty
City University of New York
formerly Special Legal Consultant to the US War Crimes Tribunals, Nuremberg
October 9, 1969