What precedent do courts-martial cite when rejecting the “just following orders” defense in war‑crimes cases?
Executive summary
The canonical rejection of the “just following orders” defense traces to early modern precedents and was crystallized at Nuremberg after World War II, a lineage courts‑martial in the United States now cite through the Manual for Courts‑Martial and modern appellate decisions such as United States v. Smith [1] [2]. Military tribunals apply a practical standard—orders that are manifestly or patently illegal do not shield a subordinate, and the test is whether a person of ordinary sense and understanding would have known the order was unlawful [2] [3].
1. Historical precedent: from von Hagenbach and Dostler to Nuremberg
European and early international tribunals rejected obedience as an absolute defense long before modern codification: von Hagenbach’s prosecution and the Dostler case were cited as precedents illustrating that following orders did not excuse criminality [4] [1], and the Nuremberg tribunals explicitly refused the superior‑orders defense, establishing the political and legal turning point that Allied prosecutors invoked in 1945–46 [1] [5].
2. How Nuremberg shaped later military law and courts‑martial
Nuremberg’s outcome was not merely historical: it informed postwar instruments and doctrines that the U.S. military incorporated into its practice, feeding into later rules that require servicemembers to disobey clearly illegal orders and that obedience cannot justify war crimes [3] [5]. The Manual for Courts‑Martial and related commentary reflect Nuremberg’s “no‑shield” principle, stating the duty to refuse orders a person of ordinary sense would know to be illegal [3] [6].
3. The modern controlling precedent in U.S. military appellate law: United States v. Smith
The Court of Appeals for the Armed Forces in United States v. Smith (68 M.J. 316 (C.A.A.F. 2010)) is described in military practice literature as the modern, rigorous articulation of the superior‑orders doctrine under the UCMJ: Smith synthesizes older cases (Calley, Rockwood, New) and clarifies when an order becomes criminal and when obedience will not excuse the accused [2]. Military commentators note Smith’s rejection of subjective “gut instinct” standards and its instruction to ask whether a reasonable servicemember would recognize the illegality—if so, the superior‑orders defense fails [2].
4. The operative legal tests: ‘manifestly illegal’ and the reasonable person standard
Contemporary rules and manuals use formulations such as “manifestly illegal” or an inquiry into whether “a person of ordinary sense and understanding” would know the order is unlawful, limiting the defense to narrow circumstances where ignorance or duress might be plausible [2] [3]. Practice guides and military defense analyses explain that an order becomes unlawful when it conflicts with higher law or commands conduct like torture, targeting civilians, or executing prisoners—categories long treated as outside lawful military discretion [6].
5. Case history and applications: My Lai, Calley, and later practice
High‑profile American courts‑martial illustrate the doctrine in practice: Lt. William Calley’s conviction for crimes at My Lai underscored that carrying out manifestly illegal orders—even in combat—can produce individual accountability, and his case is repeatedly invoked in analyses of superior‑orders limits [3] [7]. Military training, appellate review, and policy citations now treat these historical prosecutions as part of the chain justifying present rules that do not permit a blanket “I was following orders” defense [8] [3].
6. Tensions, criticisms, and international nuance
Scholars and practitioners acknowledge tensions: battlefield chaos and split‑second decisions complicate applying a reasonableness test, and some international instruments (like Article 33 of the Rome Statute as discussed in scholarly overviews) create narrow allowances where orders might relieve responsibility under strict conditions—yet the prevailing trend in tribunals and U.S. military law remains restrictive of the defense [8] [9]. Reporting and legal commentary note debates over how to balance obedience, unit cohesion, and individual criminal responsibility, and that courts will focus on whether the illegality was apparent to a reasonable subordinate [2] [8].
7. Bottom line: what courts‑martial actually cite
When rejecting “just following orders,” courts‑martial cite a lineage of authority stretching from older precedents through Nuremberg to contemporary U.S. military law—specifically the Manual for Courts‑Martial rules and the CAAF’s modern exposition in United States v. Smith—which together instruct panels to deny the defense where orders are manifestly or patently illegal and would have been recognizable as such to a reasonable servicemember [1] [2] [3]. If a claim is not detailed in these sources—such as specific unpublished trial fact patterns—this reporting does not assert their absence.