pylon makes some interesting points about the excuses used by war criminals following the Second World War. Following the Nuremburg Trials, it became clear that the excuse, "I was only following orders" was an area that needed both clarification and elimination.
As a consequence, both the United States and the United Kingdom enshrined in Service Law the "Nuremburg Principle" which states that although Service personnel have an obligation to obey lawful orders from their superiors, they have both a right and a duty to disobey illegal orders.
The United States Uniform Code of Military Justice (UCMJ) 809.ART.90 (20)
states that the Serviceman is to obey the "lawful command of his superior
officer." 891.ART.91 (2) states that personnel are to obey "the lawful order of a warrant officer" (subject to rank). In both cases - and in others - the emphasis is on lawful orders only. In other words, US military personnel are not required to follow orders that contravene the Laws and Constitution of the United States.
UK Service Law is far more complicated than American Law. The three Services are bound by different acts, including the Air Force (Constitution) Act 1919, the Air Force Act 1955, the Naval Discipline Act 1955, the Army Act 1955, the Military Code 1883 and the Armed Forces Act 1993. They are also bound by separate Queen's Regulations (QRs), with some articles being joint (applicable to the Royal Navy, Royal Marines, Army and Royal Air Force equally). Under British Law, Servicemen are directed to "observe and obey all orders of Her Majesty," (see the node on the RAF Oath of Allegiance) as well as those of their senior officers. This is modified by the fact that under QRs personnel are specifically forbidden to commit any war crimes under any circumstances. The Queen's Commission specifically requires officers to "Observe and follow such Orders and Instructions as from time to time you shall receive from Us, or any superior Officer, according to the Rules and Discipline of War..." This is a clear indication that Officers are not to follow, ergo not to give, orders that contravene the "Rules and Discipline of War," i.e. the Geneva Conventions.
UCMJ has not been invoked often since its implementation. The first major UCMJ-related incident following Nuremburg was during inquiries and subsequent courts-martial following the My Lai Massacre of 16 March, 1968. This incident probably rates as the worst in US post-War military history. A platoon from 11th Brigade, led by First Lieutenant William Calley, herded 327 old men, women and children - even babies - from the Vietnamese hamlet of My Lai into a ditch and shot them all dead. Calley's court-martial found him guilty of premeditated murder, and sentenced him to life imprisonment (President Nixon, for unclear reasons, immediately commuted his sentence to three years of house arrest).
The various other courts-martial considered the troops' defence - that they were "only following orders" - in the light of UCMJ. Colin Powell, who was
involved in the inquiry, writes in his autobiography that many of the officers and even senior NCOs - the "backbone of the armed forces" - were in many cases just filling dead men's shoes, given their rank purely because there was a requirement for someone to fill the position. Thus the argument, "I was only following orders" became difficult to prove - no-one was really sure who was competent enough to give orders, nor of the mental state (considering post-traumatic stress disorder (PTSD)) of those who followed them. Since PTSD is a mental condition, it renders people unable to assume full responsibility for their own actions.
UCMJ was invoked again during the inquiry into the Iran-Contra Affair, in 1987. Sen. Daniel Inouye of Hawaii told Lt Col Oliver North, the man who carried much of the responsibility for the Affair, that he was breaking his US Oath of Allegiance when he "blindly" followed the orders of President Ronald Reagan. In fact, referring to what Col North should have obeyed:
"The uniform code makes it abundantly clear that it must be the Lawful Orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we, the government of the United States, proposed that it be internationally applied in the Nuremberg Trials."
UCMJ is yet again being invoked now by some opponents of the recent conflict in Iraq, who claim that the conflict contravened the United Nations Charter, the Geneva Conventions and International Law. Similar arguments with respect to UK Service Law and Queen's Regulations are also being made.
The Nuremburg Trials proved beyond any doubt that if the excuse of "I was only obeying orders" could have a consequence as horrifying as the Holocaust it was imperative that International Law must prevent such an excuse being used and accepted ever again. Most nations signatory to the United Nations Charter also enshrine the Nuremburg Principle in their respective national law. It has doubtless prevented people since the War from following illegal orders. Despite the Nuremburg Trials being primarily a dissection of the most horrific phase in recent history, and a trial for those held responsible, they became a massive influence military law throughout much of the developed world following the War, and as long as the Nuremburg Principle is upheld it is hoped that aberrations like the My Lai Massacre remain little more than that - aberrations, isolated yet terrible events.