Keep Factually independent
Whether you agree or disagree with our analysis, these conversations matter for democracy. We don't take money from political groups - even a $5 donation helps us keep it that way.
What defenses are available to civilians or military personnel who obeyed an obviously unlawful command?
Executive summary
Military law draws a sharp line: servicemembers must obey lawful orders and disobey unlawful ones, but “following orders” is not an automatic defense — the Nuremberg-style defense was rejected post‑WWII [1] [2]. US practice narrows the duty to disobey to orders that are “manifestly” or “patently” illegal, and practical defenses or risks depend on whether the order was obviously unlawful, available legal advice at the time, and subsequent command or judicial review [3] [4].
1. What the law formally requires: obey lawfully, refuse manifestly unlawful orders
The Uniform Code of Military Justice (UCMJ) requires obedience to lawful orders and recognizes that unlawful orders need not be followed; courts and commentators stress that the exception applies primarily where the illegality is clear and obvious — often framed as “manifestly” or “patently” illegal [5] [3]. Military rule for courts‑martial allows an “acting pursuant to orders” defense only when the accused did not know and a person of ordinary sense would not have known the order was unlawful [6] [3].
2. Why “I was just following orders” won’t usually protect you
Modern US and international practice rejects the blanket “Nuremberg defense” that mere receipt of an order absolves wrongdoing; service members who carry out illegal acts can still face court‑martial or international prosecution even if they were ordered to do them [1] [2]. Reporting and surveys underscore that following an illegal order can produce individual criminal liability and is not a safe automatic defense [2] [7].
3. What defenses are actually available after obeying an unlawful order
Available sources emphasize limited, case‑specific defenses: you can argue you genuinely believed the order was lawful and that a reasonable person in your position would not have seen it as illegal; you can point to coercion or duress in extreme circumstances; and you can raise errors of fact about the situation that made the order appear lawful [8] [9]. Military guidance and defense practice focus on contesting elements like knowledge, voluntariness, and whether the illegality was manifest [9] [8].
4. Practical steps at the time: ask, document, seek counsel
Legal guides recommend that, when feasible, service members question unclear orders, seek clarification up the chain of command, and consult JAG counsel — actions that both protect the individual and create a record showing they did not unthinkingly comply [10] [8]. Where the illegality is obvious (e.g., an order to shoot unarmed civilians), immediate refusal is required; when it’s unclear, pausing to get legal advice is repeatedly recommended [10] [11].
5. Special complications when orders come from the top
Orders from very senior civilian leaders (e.g., the president) complicate the analysis. Scholars note that while the duty to disobey exists, the law and institutional realities narrow permissible refusal to manifestly illegal commands, and there is little institutional apparatus to police presidential misuse of the military — meaning moral courage may be necessary but risky [3] [12]. Military commentary cautions that if a review process finds an order lawful, officials who refused may have limited recourse short of resignation or political remedies [13].
6. Unlawful command influence and institutional pressures
Sources warn about unlawful command influence (UCI) — improper pressure from senior leaders that can corrupt military justice and affect outcomes for those accused or for those who raised concerns [14] [15]. Recent reporting about firings of top military lawyers and missing legal briefings signals potential institutional pressures that could affect how cases about unlawful orders are handled [1] [16].
7. Two competing perspectives in current reporting
One line of reporting and legal commentary emphasizes individual legal duty and the availability of defenses when an order was not manifestly illegal, urging careful adherence to procedures [3] [8]. Another strand — public advocacy by lawmakers and veterans — urges service members to refuse unlawful orders more broadly as a check on potential misuse of force, prompting sharp pushback from political leaders who argue such messages undermine discipline [4] [17] [18].
8. Bottom line and limitations in the record
Bottom line: obey lawful orders, refuse manifestly illegal ones; simply having an order is not a guaranteed defense, but case outcomes hinge on whether illegality was obvious, what steps the service member took, and how military justice assesses knowledge and coercion [2] [9]. Available sources do not provide a comprehensive catalog of every legal defense that could succeed in a given court‑martial — outcomes are highly fact‑dependent and require specialized legal advice (not found in current reporting).