The Defense of Following Superior Orders

A Complex Ethical Dilemma

By Patricia T. Whelan

Patricia Whelan earned her J.D. from Albany Law School in 2023 and was admitted to the New York State Bar in 2024. Before attending law school, she earned her bachelor’s degree from Penn State.  At Albany Law, Patricia was involved in various organizations including the Albany Law Review, Elder and Disability Law Pro Bono Society, and Student Bar Association.  She received the Outstanding Law School Chapter Justice Award as Chief Justice of Phi Alpha Delta Law Fraternity and previously served as the Editor-in-Chief of the Center of Judicial Process.  Patricia also enjoyed competing in Moot Court and was a finalist in the 2021 Donna Jo Morse Client Counseling Competition.  Patricia has interned for the Third Judicial District, Federal Public Defender’s Office, and served as the Law Student Liaison for the ABA Section of State & Local Government Law.

Currently, she is working as an Associate Attorney at Pierro, Connor & Strauss.

Two of Patricia’s law school seminar papers have previously been published on the Center for Judicial Process website. [One on Justice Thomas and one on the NY Court of Appeals.]

The defense of following superior orders is one of the most complex and controversial defenses in international criminal law that requires careful consideration of the moral, legal, and historical contexts.  The question of whether it is morally justifiable to follow orders, even when they conflict with one’s own sense of right and wrong, has been a topic of debate for centuries.  This ethical dilemma has been central to discussions surrounding war crimes, military obedience, and the responsibility of individuals within hierarchical organizations.  Generally, soldiers are duty-bound to obey the orders of their superior officers.  However, this becomes problematic when a soldier is ordered to perform an act which constitutes an act of war.  In such situations, the duty of military obedience conflicts with the need to maintain the supremacy of the rule of law.  

Historically, the defense of following superior orders previously allowed soldiers to escape culpability for their crimes.  However, the principles established during the Nuremberg Trials explicitly rejected the defense of following orders, stating that individuals are still responsible for their actions, even if they were acting under orders from a superior.  These Trials set an international precedent that war criminals cannot claim that they were following orders to escape responsibility.  Orders that involve war crimes, human rights violations, or actions that contravene international law are considered unlawful and must not be followed.  This moral duty is rooted in the principles of humanity and the protection of basic human rights.

This paper discusses the defense of following orders and its ban to prevent defendants from escaping liability for their actions during World War II.  Part II provides a brief explanation of the defense and examines the common justifications used to support it.  Part III explores the history of the defense and its relevance in the notorious Trials.  Part V considers the moral and ethical dilemmas surrounding the defense of following orders, and Part VI briefly concludes.

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To read the paper, open HERE.