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.

International Prosecution of Gender-Based Violence

How the ICTY Transformed the Treatment of this “Inevitable Consequence of War” 
By Brianna Wagner

Brianna Wagner is a third-year student at Albany Law School from Troy, New York. She graduated magna cum laude from Fordham University with a major in Political Science and a minor in Women, Gender, and Sexuality Studies.
During her time at Albany Law, Brianna has served as both Secretary and Co-Chair of the Women’s Law Caucus, Teaching Assistant for Introduction to Lawyering I & II, and participated in the Donna Jo Morse Client Counseling Competition and the Domenick L. Gabrielli Appellate Advocacy Competition.
In her role as WLC Co-Chair, Brianna served as a student member of the Kate Stoneman Committee. In the 2023-24 academic year, she also served as an ex officio member of the Gender Fairness Committee of the Third Judicial District.
Brianna will be joining Hinman Straub as a first-year associate in the fall, pending her admission to the New York State Bar. 

Richard Goldstone, the former Chief Prosecutor for the International Criminal Tribunal for the Former Yugoslavia, noted that “[m]en had written the laws of war in an age when rape was regarded as being no more than an inevitable consequence of war.”

In the aftermath of the Bosnian War, the ICTY was tasked with prosecuting the atrocities that occurred at the hands of the Serbian army. For the first time in international legal history, the tribunal departed from the idea that sexual assault is simply a byproduct of war and set a new precedent for how sexual violence should be prosecuted.

This paper examines how that tribunal permanently altered the way international law prosecutes gender-based violence, by including sexual violations in convictions of genocide, grave breaches, crimes against humanity, and violations of the laws and customs of war. Other international tribunals have used the ICTY as a template for prosecuting gender-based crimes and have continued developing the way international law addresses sexual violence.

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To read the paper, open HERE.

The Russo-Ukrainian War: Criminally Started and Executed

By Ryan Janes

Ryan Janes is a 2023 graduate of Albany Law School. He grew up in Rome, NY, and graduated from SUNY Albany, where he received a Bachelor of Arts in Political Science and a minor in History.

During his time at Albany Law, Ryan worked at both the Oneida County Public Defender’s Office and the Albany County District Attorney’s Office. 

This past fall, Ryan began working for a firm in Syracuse, NY, handling matters related to Workers Compensation, Employment and Business Law.

In his free time, Ryan enjoys fishing, golfing, and watching sports.

In February 2022, the Russian Federation formally invaded the neighboring nation of Ukraine. This followed nearly a decade of political unrest and civil war in the Eastern regions of that country. Russia’s meddling within the country can largely be seen as the spark that set the fire ablaze, leading to the eventual full-scale invasion of Ukraine, and causing the worst humanitarian crisis in Europe since the end of World War II.

The war has led to numerous international crises, with financial sanctions being imposed by nations such as the United States and economic/political organizations such as the European Union, and Russia facing widespread condemnation and isolation in international bodies.

Numerous legal questions have arisen because of this conflict and specifically two will be addressed in this paper. (1) Whether the invasion of Ukraine by the Russian Federation violated international law? (2) Whether the hostilities by either Ukraine or the Russian Federation, constitute war crimes? 

To address these questions, this paper begins by introducing a brief history of the Russo-Ukrainian War, followed by a discussion of the illegality of the war under international law. Further, the paper describes in detail the specific actions taken by the two Nations which can be constituted as war crimes, and lastly covers the steps taken to seek relief by international courts. Answers to these questions will then be addressed in the conclusion.

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To read the paper, open HERE.

Suffering in Silence: The Nuremberg Failure to Prosecute Sex Crimes

By Jessica Phillips

Jessica Phillips is a May 2023 magna cum laude graduate of Albany Law School. Prior to law school, Jessica graduated summa cum laude from the University at Albany with a Bachelor of Science in human development.

As a first-year student at Albany Law, Jessica served as a Research Assistant to Dean Rosemary Queenan, exploring access to Free and Appropriate Public Education for children with disabilities. In her second year, Jessica was elected to serve as the Treasurer for Albany Law School’s Family Law Society, a position she held through her third year.

In addition to her law school extracurriculars and interests, Jessica was appointed to the New York State Bar Association’s Committee on Children & the Law.

Following the bar exam, Jessica will be joining Copps DiPaola Silverman, PLLC as an associate on the matrimonial and family law litigation team.

Utilizing rape as a weapon of war is by no means a recent phenomenon. For as long as conflict has existed, so too has rape.

Sexual violence has been used consistently throughout history, originally stemming from the belief that women were property. Rape was viewed as a "legitimate spoil of war," an "inevitable consequence of war and a way to boost soldier morale," and even as a "mark of victory, proof of soldiers’ masculinity and success, and compensation for service.” If history has revealed anything, it is just how interconnected war and rape are.

However perpetual and present it has been, rape as a weapon of war has been ignored and overlooked, together with the survivors and victims of these atrocious crimes. Today, numerous international statutes explicitly prohibit rape and other forms of sexual violence during international and domestic conflicts. This was not always the case, however, and progress in this area has been painstakingly slow.

It was not until the 1990s, at the International Criminal Tribunals for the former Yugoslavia and Rwanda, that rape and other sexual crimes against women and girls were explicitly prohibited, recognized, and prosecuted by the international community. Up to this point, and during the International Military Tribunal in Nuremberg in 1945 – 1946, the victims and survivors of rape during war suffered in silence, without recognition of or justice for the vile acts they endured. 

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To read the paper, open HERE.

American Hypocrisy: International Accountability for Everyone But Us

By Connor Judd

Connor Judd is a 2022 graduate of Albany Law School. He grew up in Rochester, NY and graduated college from the University at Albany, summa cum laude, with a double major in Business and Criminal Justice.

In law school, Connor was the Managing Editor of Business & Production for the Government Law Review. In addition, he competed in multiple moot court events and interned with Hon. Denise A. Hartman, the Albany County Public Defender’s Office, and the Federal Public Defender’s Office.

Connor is currently an Assistant Public Defender for the Monroe County Public Defender’s Office. In his free time, Connor enjoys hiking, camping, and watching sports.

Connor wrote this paper for Professor Bonventre’s International Law of War and Crime seminar.

The Nuremberg Trials promised to usher in a new era of international accountability. The world vowed never again after witnessing the atrocities committed during World War II. Yet, the United States, the leading country behind the prosecution at Nuremberg, has continued to repeatedly violate the very laws and principles it sought to enforce.

This paper examines two war crimes in particular at the hands of the United States: the atomic bombings on Hiroshima and Nagasaki, and the My Lai Massacre in Vietnam. Both offer case studies on how the United States has avoided responsibility for its actions in the wake of the Nuremberg Trials.

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To read the paper, open HERE.

Ethnic Cleansing: Largely Ignored Under International Law

By Matthew C. Walsh

Matthew C. Walsh is a third-year student at Albany Law School, class of 2022. He grew up in St. Albans, Vermont, and graduated from Southeastern University in Florida where he studied pre-law and history.

At Albany Law, Matt has served on the Executive Board of the Rugby Club and as an intern in the Family Violence and Litigation Clinic for the Justice Center at the law school. He currently works at a personal injury firm in Albany and, upon graduation, he will be moving to Syracuse to work at a medical malpractice defense firm.

In his free time, Matt enjoys playing sports, being on water, and spending time with family and friends. 

This paper was prepared for Professor Alexandra Harrington's International Human Rights Law class.

This paper analyzes the history of ethnic cleansing and establishes why it is time for the United Nations to codify it into international law.

The Holocaust perpetrated by Nazi Germany through the 1930s and World War II is unfortunately only one example of many instances of ethnic cleansing throughout the world. While the United Nations has facilitated treaties prohibiting similar acts, that is not enough. All member states of the United Nations have the duty and obligation to preserve the life of all people and protect them from international human rights crimes. Despite this, there is still no international treaty or law that specifically bans ethnic cleansing.

Without such a treaty providing a definition, what exactly is ethnic cleansing, and what kinds of acts would fall under this category? Should there be a specific ethnic cleansing law in place? Are other international statutes and treaties already in place sufficient to provide the necessary protections? This paper analyzes these important questions and explains why an ethnic cleansing statute should be added to and recognized under international law.

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To read the paper, open HERE.

What Is To Be Done About International War Crimes?

By Ian Steele Pulz

Ian Pulz is a 2021 Albany Law School graduate born and raised in New Jersey. He received his Bachelor’s Degree in 2016 and went on to receive his Master’s Degree in Conflict Studies in 2018.

Ian’s interests include immigration and criminal defense law as well as jurisprudence. He will be working as a public defender in Virginia, and he was just notified that he passed the Virginia bar exam! 

In his free time, Ian enjoys hiking, reading, and activism.

 If a crime occurs with no presiding coercive power to collectively enforce it, has a crime occurred? If a country passes legislation enabling any and “all means necessary and appropriate to bring about the release of any person…who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court,” or if a country has dropped an average of twenty-two bombs on Syria and Iraq on September 21, the UN International Day of Peace, over the span of 2014-18, is it not reasonable to adopt a cynical approach to acts of war and the crimes that oftentimes accompany military conflict?

This paper will discuss the difficult concept of international war crimes. First, this paper will analyze the history of efforts to codify a standard system of law for war crimes. Second, this paper will shift to modern analysis of war crimes, drawing on sources such as President Woodrow Wilson’s Fourteen Points, continental philosopher Immanuel Kant, and legal philosopher Hans Kelsen. A major focus in this paper is the legitimate implementation of standardized law for war crimes, and why that is so difficult.

Third, this paper will discuss the ineptitude of bodies such as the United Nations and the International Criminal Court. Lastly, this paper will discuss the continued practice of war racketeering, the historic blind eye that the International Criminal Court has turned toward this practice, the International Criminal Court’s racial disparity, and the importance of community in the context of war crimes.

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To read the paper, open HERE.