U.S. Army clerks with evidence collected for the Nuremberg trials. (Photo credit: Charles Alexander)
Shoot all you see and all you hear.1
Private Myo Win Tun said his commanding officer’s order was clear.2 As a result, in August of 2017, the Myanmar armed forces massacred thirty civilians and buried them in mass graves. Were they “just following orders” and, if so, is that a valid defense to a war crime charge?
Initial military training casts on the heart and conscience of every Service member a strong desire to obey the orders of their superiors. This is intentional. From initial entry, all military training transforms civilians into Service members, relentless in carrying out the orders of the officers and noncommissioned officers charged with their care. Oaths recited publicly at promotions and reenlistments capture the institutional and individual emphasis on obedience to orders.
But obedience is not without limits, especially in armed conflict. Members are duty bound to disobey orders they know to be patently illegal, such as killing a civilian not directly participating in hostilities.3 Although, what happens when moral distance and limited information exists between transmissions of the order by staff in the military hierarchy to those carrying out the orders?4 Or worse, a Soldier’s lack of education or experience led them to perceive an illegal order as legal. A caustic tension can exist on this very matter: do I disobey the order of the one I have sworn an oath to obey, and possibly suffer punishment under the Uniform Code of Military Justice (UCMJ), or subject myself to unforeseen judgment?5
Seventy-five years ago, the International Military Tribunal (IMT) at Nuremberg and the “subsequent proceedings” addressed the age-old service member’s defense: the defense of superior orders. The judgments of the Nuremberg IMT and “subsequent proceedings” merit judge advocates’ focused attention for application to today’s practice. This article discusses the Nuremberg tribunals, the international law addressing the defense of superior orders, and the application of the defense in three of the “subsequent proceedings” cases. The article then leaps forward to a contemporary analysis of the defense of superior orders in U.S. law and provides practical recommendations for judge advocates (JAs) to train their formations.6
From 1914 until 1944, U.S. Service members could assert the defense of superior orders as a complete defense to a crime so long as they could demonstrate they acted in accordance with superior orders.7 Alongside the other milestones of the Nuremberg trials, such as individual responsibility for violations of jus cogens8 and war crimes, the IMT and “subsequent proceedings” addressed the defense of superior orders, navigated the assertion of the defense, and established a standard that endures to today.
The International Military Tribunal and The London Charter
Before victory, the Allied Powers publicly expressed their intention to hold their adversaries accountable for their violations of the law of armed conflict (LOAC).9 World War II (WWII) atrocities such as the Holocaust, Malmedy Massacre, and many more demonstrated the propensity of opposing forces to commit evil acts against service members and civilians during armed conflict. In a remarkable departure from “what had been done after the last war,” the Allied powers agreed to hold individuals responsible by tribunals of both an international and national character. The Allied tribunals, such as the IMT at Nuremberg and the “subsequent proceedings” convened after Germany’s unconditional surrender, may forever be remembered as the “most significant tributes that Power has ever paid to Reason.”10
Striving to strike a delicate balance between accountability and a fair process, the drafters of the tribunals ensured that the founding international agreement for the IMT in Nuremberg, the London Charter, addressed the defense of superior orders explicitly among the few articles of the charter. The drafters aimed to eliminate the possibility of impunity on the basis that defendants claimed to “only be following orders.” In Article 8 of the London Charter, “[t]he fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”11 And as written and applied, Article 8 did just that; in fairness to the defendants, they knew before trial that any assertion of the defense of superior orders would not serve as an excuse or justification for charged acts, but could mitigate punishment.
Similar to the novelty of the international tribunal itself, the drafters of the London Charter wrote Article 8 in a manner that departed from an interloping and defense-friendly defense put forth by Lassa F.L. Oppenheim.12 Beginning in 1906, Oppenheim made popular the defense of superior orders as a complete defense—one that excused war crimes committed by service members pursuant to orders. The drafters of Article 8 departed from this brief development and reinstated an old standard.13 Under Oppenheim’s defense, belligerents would hold individuals who ordered the criminal acts responsible, rather than those who committed the acts, but this standard was not welcomed at the Nuremberg IMT.
On 20 November 1945, the Nuremberg IMT proceeded to trial without the possibility of asserting the Oppenheim defense of superior orders to excuse criminal acts. The Nuremberg IMT judges did not excuse any of the twenty-one Nuremberg defendants’ crimes based upon the defense of superior orders.14 The judgment at Nuremberg IMT appeared to contain a persuasive precedent of strict application of Article 8 and, therefore, only permitted evidence concerning obedience to orders as possible mitigation in sentencing.15 What may be more significant and offer a more profound legacy, however, are the subsequent proceedings convened under Control Council No. 10 and the two trials that occurred under that U.S. law.
“Subsequent Proceedings”: The von Leeb and List Cases
For those responsible for crimes and atrocities in WWII not tried at the Nuremberg IMT, the Allied Powers divided up the defendants based upon sectors of Allied post-war occupation. The United States pursued criminal accountability of Nazi war criminals in what has been referred to as the “subsequent proceedings,” or tribunals convened under U.S. law, tried in Nuremberg, Germany. The United States instituted the “subsequent proceedings” by U.S. directive as expressed in U.S. Control Council Law Number 10 (Law No. 10).16
The drafters of Law No. 10 knew that the defense of superior orders would need to be addressed just as it was in the London Charter. That was done in Article II.4(b), which mimicked Article 8 in that, “[t]he fact that any person acted pursuant to the order . . . of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”17 And, although the Law No. 10 drafters followed the London Charter, the outcome of the assertion and application of the defense of superior orders at the “subsequent proceedings” was different.
During a few of the twelve “subsequent proceedings,” such as United States v. Ohlendorf (The Einsatzgruppen Case), United States v. List (The Hostage Case), and United States v. von Leeb (The High Command Case), the strict Article 8 standard for defense of superior orders began to wilt.18 The tribunals wrestled with the defense of superior orders and the evidence presented at trial. Their judgments expressed a reluctance to ignore evidence excusing criminal acts but did so under different theories, such as duress or mens rea.19 In Ohlendorf, the tribunal considered the defense of superior orders coupled with the defense of duress.20 In List and von Leeb, the tribunal dealt with military commanders and high-ranking officers.21 The tribunal applied the defense in their cases more akin to a mistake of law defense, which provides us with a view to the contemporary. In von Leeb for example, the tribunal in judgment expressed:
Furthermore, a distinction must be drawn as to the nature of a criminal order itself. Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state which he serves and which are issued to him are in conformity with international law.22
The von Leeb tribunal struggled with finding guilt when a defendant did not know, nor should have known, that an order was illegal. The tribunal’s judgement in List, more clearly articulated their reservation with a strict rejection of the defense of superior orders and instead expressed:
Implicit obedience to orders of superior officers is almost indispensable to every military system. But this implies obedience to lawful orders only. If the act done pursuant to a superior’s orders be murder, the production of the order will not make it any less so. It may mitigate, but it cannot justify the crime. We are of the view, however, that if the illegality of the order was not known to the inferior, and he could not reasonably have been expected to know of its illegality, no wrongful intent necessary to the commission of a crime exists and the inferior will be protected. But the general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers, and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice.23
In the end, the List case further emboldened the vitality of the defense of superior orders from the complete bar envisioned in the London Charter. The defense of superior orders proved resilient to the Nuremberg IMT’s singular attempt to reject this defense outright. Instead of a complete rejection, the “subsequent proceedings” addressed the defense of superior orders, which had an impact on the LOAC. Today, leaders and service members have the opportunity to assert the defense in limited circumstances and know when the defense will not apply.
Current U.S. Application of the Defense of Superior Orders
A Service member’s obligation to obey orders remains an essential element of the U.S. military’s ability to function effectively. However, following a superior’s orders is not a get-out-of-jail-free card24 for an alleged LOAC violation. Because U.S. practice is to charge war crimes as offenses under the UCMJ,25 and obedience to superior orders remains a viable defense, it is important for JAs to understand and be able to apply the current law in an increasingly complex and legally dynamic world.
The 2019 Manual for Courts-Martial (MCM) addresses obeying military orders in several parts. Within the MCM, Articles 90, 91, and 92, UCMJ, criminalize acts of disobedience and are the most relevant to this discussion. Article 90 prohibits “willfully disobeying the lawful command of [a] superior commissioned officer.”26 Article 91 adds the requirement to obey warrant officers, noncommissioned officers, and petty officers. Finally, Article 92 forbids Service members from disobeying any lawful general order, regulation, or order issued by a member of the armed forces, which it is their duty to obey.27 These three articles provide the fundamental presumption on which the defense of superior orders depends: Service members will obey the orders issued by their superiors.28
The mere existence of an order, however, does not stop the analysis or necessarily absolve the accused from criminal responsibility. The 2020 Military Judges Benchbook instructs that if a court-martial panel determines the accused is acting under an order,29 then the fact finder must also decide whether the accused knew the order was illegal.30 Therefore, defense of superior orders is a complete defense, unless: (1) the order is illegal, and (2) “the accused actually knew it was illegal or a person of ordinary sense and understanding would, under the circumstances, know the order was illegal.”31
A court-martial panel, when determining whether the accused had actual knowledge of a patently illegal order, must take into account factors such as the accused’s age, education, training, rank, background, and experience;32 circumstantial evidence is sufficient to prove actual knowledge.33 Absent proof of knowledge, the measure becomes that of a person of ordinary sense and understanding. The UCMJ clearly contemplates that a young private likely does not have the same familiarity with the law as a senior officer. Nevertheless, the reality of current practice is that neither private nor senior officer should have difficulty identifying an illegal order.
There exists a strong inference that a superior’s order requiring the performance of a military duty is lawful, unless the order is patently illegal.34 United States courts have also used the term “manifestly” to describe the illegal order.35 The UCMJ does not define patently illegal or unlawful in the context of obeying an order, but instead provides the example of directing the commission of a crime (e.g., the torture of a detainee or the unlawful killing of a combatant incapacitated by severe wounding or capture).36 As a question of law, and given that the military judge makes the determination on the legality of an order, the lack of a definition is arguably appropriate.37
Use of the terms “patently” and “manifestly” signals the crime must be obvious on its face. This is evidenced by the law not only permitting Service members to disobey, but actually requiring disobedience of the order.38 Consider, as an example, the widely known abuse of prisoners perpetrated by U.S. Service members at Abu Ghraib prison in Iraq. The guards perpetrated acts such as urinating on prisoners and making them remove their clothes and forming human pyramids.39 If a superior orders a Service member to carry out such heinous acts, it would be immediately apparent that the order is illegal, requiring them to disobey. Identifying the illegality does not require academic prowess, but how to respond may not be so instinctive.
Training Disobedience to an Order
The U.S. military indoctrinates its members to follow orders, even when counter to their conscience, religion, or personal philosophy.40 This makes sense given the inherently harmful situations encountered in the profession of arms (e.g., rapelling from a helicopter or clearing a fortified building of armed enemy combatants). However, the law demands the opposite—disobedience—when the order is to commit a war crime.41 Current law of war training contains little, if any,42 discussion on how one should respond to a patently illegal order.
It seems prudent to provide Service members, especially those at the tactical level where most war crimes are ordered, the tools to respond. Judge advocates can easily accomplish this during their required classes on the rules of engagement, law of war, or detainee operations. Due to the varying speeds of war, training on this matter deserves special focus and careful articulation. The instruction might begin with asking what actions the trainee(s) will take during the following three vignettes.
A lieutenant tells the Service members in his platoon, “Motorcycles should be engaged on sight.” Later the same day, while on a mounted combat patrol, the members approach three men riding on a motorcycle, none of whom appear to be armed or committing any hostile acts. The lieutenant demands over the radio, “Why aren’t you shooting?”43
An enemy tank column advances on a squad’s position, and the squad leader directs their squad members to seek cover in a church. As one tank passes the church, the same squad leader opens a window and yells for a squad member to grab the javelin missile system.
During a combat operation, Service members capture three prisoners of war (POWs) and bind their hands with plastic cable ties. A private overhears a discussion between the squad leader and another member, where they agree to cut the ties, making it appear as if the POWs are trying to escape. Shortly thereafter, while readying his M4 carbine, the squad leader orders the private to cut the ties.44
Throughout the vignette discussion, JAs should guide Service members through four recommended response steps.45
Step 1: DECIDE. Make a determination whether the order is patently illegal.46
Step 2: CLARIFY. If circumstances allow, respectfully request the superior to repeat and/or clarify the order.
Step 3: DISOBEY. If the order is patently illegal, disobey the order.
Step 4: REPORT. If the superior continues with a patently illegal order, report the incident to a higher authority.47
At no point should the subordinate resort to violence against the superior. The availability of the legal defense of superior orders to a war crime largely depends on the specific jurisdiction and forum. Since U.S. Service members are ordinarily tried by courts-martial, training ought to center on the current application of the defense in the UCMJ. For a more complete understanding of the defense of superior orders, one may also study its recent application in international law48 and in the courts of our coalition partners.49
Commemorating the 75th Anniversary of the IMT at Nuremberg provides the Judge Advocate General’s Corps an opportunity to reexamine a portion of history involving LOAC, a history forged in the crucible of armed conflict and the courtroom. The IMT addressed a complicated issue of significance to both commander and service member: the limitation of a superior’s orders and criminal liability of an individual service member. What resulted is a bright line rule to memorialize: Patently illegal orders overcome the presumption of obedience and must be disobeyed, or the service member risks criminal liability. This standard is reflected in current U.S. law and practice.
With a re-emphasis on preparation for large-scale combat operations, JAs must incorporate the defense of superior orders in their training and leader development on the LOAC. Additionally, due to a current absence of instruction on the subject, the inclusion of guidance on the proper response to a patently illegal order is equally integral. Service members who are confused by the law concerning obedience to orders and respond inappropriately present a risk to mission and force. Let’s learn from the past and prepare for the future. TAL
MAJs Medici and Scheel are professors in the National Security Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
1. Hannah Beech et al., ‘Kill All You See’: In a First, Myanmar Soldiers Tell of Rohingya Slaughter, N.Y. Times (Sept. 8, 2020), https://www.nytimes.com/2020/09/08/world/asia/myanmar-rohingya-genocide.html.
3.Antonio Cassese, International Criminal Law 232 (Oxford Univ. Press 2d ed. 2003).
4.See Major Walter M. Hudson, Book Review, 161 Mil. L. Rev. 225 (1999) (reviewing Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline and the Law of War (1999)).
5. Gary D. Solis, Obedience of Orders and the Law of War: Judicial Application in American Forums, 15 Am. U. Int’l L. Rev. 481, 484 (1999).
6. This article intends to commemorate the International Military Tribunal at Nuremberg and does not conduct a complete review of the U.S. history of the defense of superior orders. It does not address assertions during Vietnam or any other post-WWII operations, nor does it discuss the International Criminal Tribunals for Yugoslavia or Rwanda, nor the International Criminal Court’s Article 33.
7.Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 377-84 (2d ed. 2016).
8.Jus cogens is defined as “[a] universal norm in customary international law. [It] is the set of norms in [CIL] that are universally recognized and accepted by the international community. Deviations from the jus cogens are not permitted unless they are superseded by a subsequent change in the jus cogens.” Jus cogens, Bouvries Law Dictionary (2012). Seealso M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 L. & Contemp. Probs. 63 (1996) (providing an explanation of jus cogens in an international criminal law context).
9. Annex 10, Declaration of German Atrocities, Moscow Conference of Foreign Secretaries (Nov. 1, 1943). See alsoCassese, supra note 3,sec. 18.2, 329-31 (2003).
10.Second Day, Wednesday, 21 November 1945: Morning Session,in 2 Trial of the Major War Criminals Before the International Military Tribunal 98-99 (1947).
11. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 8, Aug. 8, 1945, 82 U.N.T.S. 279 [hereinafter London Charter].
12.Solis, supra note 7, at 377-78.
13.Id. at 383-87. During Operation Husky—a military campaign in Sicily, Italy—U.S. Soldiers committed war crimes against Italian and German prisoners of war. The law at the time led to disparate results between a noncommissioned officer and an officer. In turn, there was a change in the U.S. Rules of Land Warfare that led to a correction in the deficiency in the defense of superior orders. See Fred L. Borch III, War Crimes in Sicily: Sergeant West, Captain Compton, and the Murder of Prisoners of War in 1943, Army Law., Mar. 2013, at 1.
14.Solis, supra note 7, at 395.
15.Id. at 387.
16.Id. at 388. See alsoAllied Control Authority, Germany,1 Enactments and Approved Papers of the Control Council and Coordinating Committee 308 (1945), https://www.loc.gov/rr/frd/Military_Law/Enactments/Volume-I.pdf (last visited 15 Sept. 2020).
17.Solis, supra note 7, at 388.
18. Colonel Charles Garraway, Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied, 836 Int’l Rev. Red Cross 785 (Dec. 1999).
19. Mens rea means “the mind of the person. [It] is the mental state of the person under discussion at a given time, particularly the person’s beliefs, purpose, and expectations that are relevant to some legally significant action or inaction by that person.” Mens rea,Bouvier Law Dictionary (2012).
20. IV Trials of War Criminals Before the Nuernberg Military Tribunals, Nuremberg Military Tribunals 480 (1950).
21. XI Trials of War Criminals Before the Nuernberg Military Tribunals, Nuremberg Military Tribunals 462-63, 764-65 (1950).
23.Id. at 1236.
24. A get-out-of-jail-free card is an element of the board game Monopoly produced by Hasbro, Inc.
25.U.S. Dep’t of Army, Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare para. 8-42 (Aug. 2019). See alsoOff. of The Judge Advocate Gen., Targeting and the Law of War: Administrative investigations & Criminal Law Supplement (10 Sept. 2018) (explaining the necessary elements of proof to substantiate a Law of War violation and the implicated punitive articles under the UCMJ).
26. UCMJ art. 90 (2016).
27. UCMJ art. 92 (1950).
28. Shane Reeves & David Wallace, Can US Service Members Disobey an Order to Waterboard a Terrorist?, Lawfare (Apr. 6, 2016, 9:56 AM), https://www.lawfareblog.com/can-us-service-members-disobey-order-waterboard-terrorist.
29. The panel’s determination may include whether the Service member issuing the order had the authority to do so, the order related to a military duty, and was the order directed at the accused. Manual For Courts-Martial, United States pt.IV, ¶ 16c (2019) [hereinafter MCM].
30.U.S. Dep’t of Army, Pam. 27-9, Military Judges Benchbook para. 5-8-1 (29 Feb. 2020) [hereinafter DA Pam. 27-9].
31.MCM, supra note 29, R.C.M. 916(d).
32. DA Pam. 27-9, supra note 30, para. 5-8-1.
33. MCM, supra note 29, pt.IV, ¶ 16c(e).
34.Id. ¶ 16c(2)(a)(i).
35.See Solis, supra note 7, at 391 (examining use of the term “manifestly” as used in several post-World War II cases).
36. MCM, supra note 29, pt.IV, ¶ 16c(2)(a)(i).
37.Id. ¶ 16c(2)(a)(ii).
38. Reeves & Wallace, supra note 28 (“A service member who obeys an illegal order is individually culpable for the crime and cannot later assert ‘following orders’ as a defense.”).
39. John Ford, When Can a Soldier Disobey an Order?, War on the Rocks (July 24, 2017), https://warontherocks.com/2017/07/when-can-a-soldier-disobey-an-order/ (“Some of the Soldiers involved in the abuse tried to assert superior orders as a defense, though none were successful.”).
40. Reeves & Wallace, supra note 28.
41. MCM, supra note 29, pt.IV, ¶ 16c(2)(a)(i).
42.Seealso Solis, supra note 7, at 390 (“No state’s armed services instructs its members in disobeying orders.”).
43.See Greg Jaffe, ‘The Cursed Platoon,’ Wash. Post (July 2, 2020), https://www.washingtonpost.com/graphics/2020/national/clint-lorance-platoon-afghanistan/ (containing testimony of Soldiers in the court-martial of First Lieutenant Clint Lorance).
44. See Solis, supra note 7, at 413-16 (describing the incidents leading to the 2007 court-martial of Staff Sergeant Raymond L. Girouard).
45.E.g.,Id. at 393.
46. When time is limited, if it is not immediately apparent that the order is illegal, then the Service member must assume the order is lawful.
47.See U.S. Dep’t of Def., Dir. 2311.01, DoD Law of War Program (2 July 2020) (examining alleged law of war violation reporting requirements).
48. “The fact that a person acted pursuant to orders of his or her Government or of a superior does not relieve that person from responsibility under international law, provided it was possible in fact for that person to make a moral choice.”U.S. Dep’t of Def., DoD Law of War Manual para. 18.22.4 (June 2015) (C2, Dec. 2016) (citing U.N. International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, inReport of the International Law Commission on its Second Session, 5 June to 29 July 1950 (Document A/1316), reprinted inII Y.B. Int’l L. Comm’n 374, 375, U.N. Doc. A/CN. 4/SER.A/1950/Add. 1).
49.SeeMark J. Osiel, Obeying Orders: Atrocity, Military Discipline and the law of war 77 (1999) (describing a manifestly illegal order in the German Military Penal Code’s as, “what every man’s conscience would tell him anyhow”).