Fact Sheet: “Following Orders” Is No Defense to War Crimes: The Duty to Disobey Illegal Military Orders
Service members of the United States Armed Forces are required to disobey orders that violate the law. As retired Marine Corps General John Allen recently said: “When we swear an oath to support and defend the Constitution…one of those is to ensure that we do not obey illegal orders.” While the Uniform Code of Military Justice demands obedience to the lawful orders of a superior commissioned officer, it equally demands disobedience when the order given is illegal. Military leaders such as Lieutenant General Sean MacFarland have spoken out to reaffirm that the U.S. military will not commit war crimes: “We are bound by the laws of armed conflict. And you know at the end of the day, it doesn't only matter if you win, it matters how you win.” Both international and domestic courts have a robust history of convicting service members who carried out unlawful orders. When former Nazis claimed to have just been following orders, this defense was unequivocally rejected during the Nuremberg trials.
Waterboarding, killing family members of suspected terrorists, and carpet bombing civilian areas are not only clear violations of the law, they are war crimes. Giving, following, or relaying orders to commit such acts are also war crimes.