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How do the Nuremberg Principles and military law interact when judging unlawful orders under the UCMJ?
Executive summary
The Nuremberg principle that “following orders” is not an automatic defense for war crimes sits alongside the UCMJ’s strong default duty of obedience: service members must refuse manifestly unlawful orders but risk court-martial if they disobey orders that a court later finds lawful [1] [2]. Contemporary reporting and legal guidance stress that only a narrow class of commands — those so patently illegal that a person of ordinary understanding would recognize them — are freely disobeyable without immediate legal risk [3] [4].
1. The legal tension: international accountability vs. military obedience
The Nuremberg legacy created a binding international norm that individuals can be held criminally responsible for crimes even if committed under orders, rejecting “just following orders” as a blanket defense [1] [5]. The U.S. military system, by contrast, is built on a “default duty of obedience” embedded in the UCMJ and Articles such as Article 92 (failure to obey) and Article 90 (willful disobedience), which expose service members to punishment for disobeying orders that are later deemed lawful [2] [4]. That creates an operational tension: international law demands individual responsibility for atrocities, while domestic military law enforces unit discipline and hierarchy [1] [4].
2. What “manifestly unlawful” means in practice
Military doctrine and recent reporting emphasize the concept of “manifest unlawfulness” — orders that “any ordinary person would know in their gut” violate domestic or international law — as the practical line where refusal is legally defensible [3] [6]. Commentators and military manuals recognize that this category is intentionally narrow: obvious crimes (e.g., orders to kill unarmed civilians, sexual assault) qualify, but politically controversial or unwise orders usually do not [6] [7].
3. How courts and tribunals have approached the question
U.S. courts and military tribunals reject a wholesale Nuremberg-style immunity for obedience: defendants who carried out war crimes have been prosecuted even when they claimed superior orders, but courts also examine whether the unlawfulness of an order was evident to the subordinate [1] [5]. Contemporary U.S. prosecutions and military justice practice thus weigh both the criminal nature of the act and the visibility of the illegality to the individual, rather than treating orders as automatically exculpatory or automatically criminalizing refusal [1] [2].
4. Practical advice and institutional pathways inside the military
Available guidance for servicemembers stresses caution: you can seek clarification, use Inspector General complaints, Article 138 redress, or congressional inquiry channels rather than immediately refusing, because refusal carries heavy risks if the order is later judged lawful [7] [4]. Legal FAQs drafted for service members underline the harsh reality that obedience or refusal is often judged after the fact by military or civilian courts and tribunals [7].
5. Political and civil-military consequences of public advice
When lawmakers or public figures urge troops to disobey “illegal orders,” analysts warn this can create confusion and undermine the chain of command even if the legal principle is sound; critics argue such messages should be specific about which orders are unlawful to avoid disorder [6] [4]. Supporters counter that reminding troops of the duty to refuse manifestly unlawful commands simply restates settled law rooted in Nuremberg and the UCMJ — but both sides acknowledge operational risks and political agendas in public messaging [8] [6].
6. Limits of current reporting and unanswered questions
Available sources explain the doctrinal split and give examples and procedural remedies, but they do not supply a single, binding list of what qualifies as “manifestly unlawful”; that determination remains case‑specific and primarily a judicial or convening authority judgment [3] [7]. Sources also do not provide exhaustive empirical data on how often service members are prosecuted for obeying orders later found unlawful versus punished for unjustified refusals — “not found in current reporting.”
7. Bottom line for service members and policymakers
Legal precedent from Nuremberg and modern UCMJ provisions together mean: obey lawful orders; refuse orders that are clearly crimes (e.g., intentionally targeting civilians), and use institutional reporting channels when in doubt — because refusing non‑manifestly unlawful orders risks court-martial while following manifestly unlawful orders risks war‑crimes liability [1] [2] [7]. Policymakers and public figures should be specific and cautious when advising troops, since vague exhortations can produce both legal peril for individuals and disruptions to military discipline [6] [4].