That is exactly what the Nuremberg defendants claimed - that they are being tried because they lost the war not because of any legal principle. That might be true in Nurmeberg, but the Nuremberg trial established a precedent which can be used in subsequent cases. If memory serves, the Nurmeberg defense was used in the US in a number of civil disobedience cases, and the US courts split on allowing it - those North of the Mason-Dixon line being generally more sympathetic to it. Justin?
Not to mention the fact that there is a fundamental difference between a criminal case for following orders, and the one for not following them. I agree that, short of the US defeat, nobody has the capacity to prosecute US officials for war crimes or crimes against humanity. However, the Nuremberg defence can be used in cases of US offcials prosecuting military personnel for disobeying their orders and I can see that it can work in US courts.
Wojtek