Yes, and a service member accused of a war crime is entitled to a vigorous defense no matter how serious the allegation. Much of that defense turns on one issue the public misunderstands, the “I was following orders” claim, which has a real but tightly limited place in the law. Understanding exactly where that defense begins and ends is central to defending these cases.
The superior-orders defense, and its limit
The defense of obedience to superior orders is narrower than its reputation. The governing principle is clear: obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew the act was unlawful, or should have known because the act was manifestly unlawful.
Two ideas sit inside that rule:
- Orders are presumed lawful. A subordinate generally must obey, and disobeys at their peril, so following an order is not automatically wrongful.
- But there is a duty not to obey a manifestly unlawful order. When an order is obviously, patently unlawful on its face, “I was told to” does not excuse carrying it out.
So for a manifestly unlawful act, superior orders is generally not a complete defense. The “manifestly unlawful” standard, the crime must be obvious on its face, is the line that decides whether the defense is available at all.
Mitigation, even where not a full defense
The defense is not worthless even when it fails as a complete excuse. Obedience to orders can be considered in mitigation of punishment if the court determines justice requires it. So a defense counsel may use the circumstances of an order both to contest guilt where the order was not manifestly unlawful, and to reduce sentence where it was.
The broader defense
Beyond superior orders, defending a war-crimes allegation involves the same rigor as any grave charge: testing whether the act was actually unlawful in its operational and law-of-armed-conflict context, challenging the government’s proof on each element, and scrutinizing the evidence. The seriousness of the charge does not lower the standard of proof; if anything, it raises the stakes of holding the government to it.
Suppose a member is accused of following an order to do something plainly unlawful: obeying does not excuse a manifestly unlawful act, though the circumstances of the order may still mitigate the punishment.
The practical upshot is that representing a service member accused of war crimes is real, demanding defense work. The superior-orders defense is available but bounded by the manifestly-unlawful standard, it can mitigate even when it cannot excuse, and the broader defense tests the government’s case element by element. Engaging experienced counsel early, before any statement, is critical given the gravity involved.
Frequently Asked Questions
Is “I was following orders” a defense to a war crime?
Only in a limited way. Obeying an order does not relieve criminal responsibility if the person knew, or should have known because the order was manifestly unlawful, that the act was unlawful.
Are orders presumed lawful?
Yes. Orders are presumed lawful and a subordinate disobeys at their peril, but there is a clear duty not to obey a manifestly unlawful order.
Can following orders reduce a sentence even if it is not a complete defense?
Yes. Obedience to orders can be considered in mitigation of punishment even where it does not excuse a manifestly unlawful act.
This article is general information about defending war-crimes allegations. It is not legal advice and does not create an attorney-client relationship. These cases are complex and fact-specific and the law can change. Anyone facing such an allegation should consult qualified defense counsel immediately.
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