Crimes Against Humanity Are Never Legally Binding

When Nazi war criminals went before an international court in Nuremberg, the primary legal defenses were versions of “befehl ist befehl” – “an order is an order” or “I was just following orders.” This plea is now known as the “Nuremberg Defense.”

The defense was not well-received by the court. Many were executed and rightly so because there is a law higher than man’s law. The Declaration of Independence refers to it as the law “of nature and nature’s God.” Any government order to murder the innocent is null by its nature because it is in violation of the highest law. For this reason, “I’m just following orders” or “I’m just following the law” is no legitimate defense for those who play a part in atrocities.

Studies such as Yale Professor Stanley Milgram’s famous observations have demonstrated the degrees to which humans are willing to harm others when they are given orders to do so. Another such study done by researchers at University College London and Université Libre de Bruxelles in Belgium found that actions taken under coercion decreases one’s “sense of agency.” The report further explained that “people who obey orders may subjectively experience their actions as closer to passive movements than fully voluntary actions.” In other words, test subjects who obeyed orders to inflict harm on others did not properly associate their actions with the harmful outcome. They viewed themselves as a cog in a machine rather than a moral agent. In their minds, they are partially or entirely disconnected from the moral value of their actions.

When abolitionists of abortion ask pro-life politicians at the state level to support a bill to abolish abortion immediately, the response is almost always some version of “befehl ist befehl.” “Abortion is murder, but we have to follow the supreme court’s orders,” they say. Pro-life politicians and lobbyists think this is a legitimate defense for their choosing not to pass and enforce a law treating preborn humans the same as born humans. Abolitionists do not believe this is a legitimate reason not to abolish abortion just as it wasn’t a legitimate defense for mid-level Nazis following their orders.

A pro-life lawyer I spoke to recently explained this position by saying “The logic of [comparing submission to Roe to submission to Nazi orders] is faulty, since Roe does not ‘order’ abortions to be carried out (like China’s’ ‘one-child’ policy) but provides for their legal availability to women as a matter of right.” In the minds of many pro-lifers, it’s morally acceptable to submit to Roe rather than nullify it because Roe is not an order to mass murder, but merely an order to allow mass murder.

Using that distinction, the pro-life politician, lawyer, or lobbyist disconnects his or her actions from the outcome of millions of murdered children. Their conscience is assuaged as they tell themselves, “At least I’m not the one murdering these children. I’m merely allowing their murder – because befehl ist befehl.”

Pro-life legislators and executives in states where pro-lifers control the state government are allowing crimes against humanity to take place in their states. This genocide is enabled by the pro-life leaders. Roe is an order to allow mass murder. It is a crime against humanity and is therefore null by its nature.

In the Kentucky Resolutions, Thomas Jefferson wrote that “every state has a natural right to nullify,” and that when the federal government behaves tyrannically, “nullification… is the rightful remedy.” To be a nullificationist is the only alternative to embracing the philosophy of the Nazi who claims “befehl ist befehl.” To reject nullificationism is to say that our governing authorities can inflict any amount of evil upon us or our neighbors and we have no ability to stand against it without the consent of the same governing authorities.

This is why it is a human right, and sometimes a human obligation, to nullify when a governing authority commands that which is evil, and especially if that command rises to the level of being a crime against humanity. Roe v. Wade is a crime against humanity that ushered in one of the greatest mass murders the world has ever seen with 63+ million dead and counting. It’s time that state governments stop “obeying orders” like good Nazis and treat Roe as the crime against humanity and legal nullity that it is.