The Law of Armed Conflict International Humanitarian Law in War

Chapter 9 examines the most-frequently raised defense to war crime charges, obedience to orders. The defense is rarely successful but has been raised as long ago as 1474. Examples are culled from Chapter 3’s Leipzig Trials that followed World War I. A history of the defense in US and UK military law provides background and context. The defense of superior orders was valid in the UK and the US until late in World War II, when the UK and US decided to preclude Nazi war criminals from its use. The case of a noted World War II US submarine commander who ordered machine-gunning of survivors of a ship he had sunk, is recounted. The post–World War II Nuremberg Military Tribunal is thought to have finally ended the defense but it only briefly slowed its use. It was Calley’s My Lai defense in 1971 and it continues around the world today – although constrained. What constitutes an unlawful order is parsed through actual examples. Readers are advised what to do, should they be given an unlawful order. Use of the defense in foreign jurisdictions is demonstrated. Again, excerpts from modern-day trials are in the Cases and Materials, at the chapter’s end.