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.

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.

Genocide: Cannot Be Just Another Crime Against Humanity

By Deirdre R. Barthel
Deirdre Barthel is a third-year law student at Albany Law School.  She earned a Bachelor of Arts degree with dual-majors: Russian Language and Russian & East European Studies, as well as a minor in History, from University at Albany.
Ms. Barthel holds multiple leadership roles at the law school, including: Chief Justice of the Rockefeller Chapter of Phi Alpha Delta, Director of Competitions of the Anthony V. Cardona ’70 Moot Court Program, Senior Editor for the Center for Judicial Process, and Senior Editor for International Law Studies.  She is also a competitor on the law school’s travel team for the Philip C. Jessup International Law Moot Court Competition, as well as the coach of the Jerome Prince Memorial Evidence Law Competition.
Ms. Barthel worked as a law clerk at the NYS Liquor Authority, for Judge Victor of the High Court of South Africa, at the NYS Inspector General’s Office, and at NYS’s Committee on Open Government.
This essay was prepared for Professor Bonventre’s International War & Crime seminar, Fall 2013.

Foremost, in an introduction to genocide, it is important to understand what is considered “genocide.”  The term was first used in 1944 by Raphael Lemkin because he “recognized the absence of any crime aimed to prevent and punish the murder and destruction of millions.”[1]

Relatively soon thereafter, the Genocide Convention of 1948 identified conduct that constitutes genocide in terms of actus reus and mens rea.[2]  The actus reus conduct is defined as to:

(a) include the killing of members of a racial, ethic, or religious group;

(b) cause serious mental or bodily harm to members of the group;

(c) bring about the group’s physical destruction in whole or in part;

(d) prevent births within the groups; or

(e) forcibly transfer children of the group to another group.[3]

Along with this activity, “the mens rea, or specific intent, of genocide is that the perpetrator committed one of the aforementioned acts intending to destroy the group in whole or in part.”[4]  This mens rea is most likely the reason why the forced displacement of persons does not comprise genocide.[5]  The physical location of people does not categorize them in the same type of “group” that was intended for recognition by clause (a) of the Convention.