Following an unlawful order is illegal even if you’re a Nazi. (The fact this presumes everyone knows what the winning side will find illegal is to be gently glossed over.) That seems to mean that generals (or colonels, or lieutenants, or sergeants, or anyone else in command of others) cannot be fully responsible for the effects of their orders. Is that correct? Does this have any effect on the real world?
Every person is liable for the actions, and inactions he makes. This is true both legally and morally. rank makes no difference.
“I was only following orders,” is not a permissible defense. “I was only giving orders,” likewise.
Responsibility is not zero-sum.
This is wrong from at least one legal standpoint and a few moral standpoints as well.
Legally, civil courts routinely decide which percentage of responsibility is assigned to which party to a given case. This translates to some monetary or other form of financial punishment, not prison time, but the concept is sound: It really does require two to be defrauded; one to lie, and one to be reckless and ignorant enough to listen.
Morally, responsibility is proportional to ability*, and the ones with the greatest ability to stop things are those at the scene, pulling triggers and digging mass graves. If we accept that it’s their responsibility to refuse unlawful orders, even with the knowledge that deserters and mutineers are only shot if their captors can’t find anything worse to do, then they have a responsibility to desert and mutiny in actuality as opposed to just in theory.
*(c.f. The M’Naughton Rule, etc.)
Where is my reasoning wrong?
Generals are liable for their illegal orders in time of war. The idea is not to reduce the liability of those giving the orders as much as preventing those who follow the orders claiming they’re not liable because they were merely following orders.
This is also true in other areas. Police who follow illegal orders are as liable as are their superiors who gave the orders. It is also true in business too. If your boss asks you to do something illegal like fudging the books to make the business seem profitable, you can also be held liable for that crime.
The intent is to give the person receiving an illegal order an incentive not to follow that order.
No. This is absolutely, categorically incorrect.
What obscures this is the excuses that commanders may make when called upon to account for their illegal orders. Whereas subordinates may claim, “I was just following orders,” superiors may claim, “I never gave such an order,” or if this is proven to be false, “My orders were misinterpreted.”
So I suppose there really isn’t much of a philosophical basis, then. Thanks.
There’s a big difference between criminal liability and civil liability. Criminal liability is an all or nothing affair. You’re either guilty or not guilty. If your boss told you to murder someone, both you and your boss can be charged with first degree murder. The court isn’t going to decide “We’ll give the defendants 40 years, but since there are five involved in the case, each will serve only 8 years in jail”.
But we’re not talking about civil situations, we’re talking about criminal ones. A general giving an illegal order and a soldier following together constitute a conspiracy to commit a crime, and according to criminal law, each member of a conspiracy is equally guilty.
Or if 10 people conspire to kill a man, should each member of the conspiracy receive 1/10th of a life sentence?
Morally, if you have a reasonable expectation that your actions will lead to certain results, then you are responsible for these results. This means that if you tell someone to commit a crime, and you can be reasonable certain that he’ll do what you tell him, then you, in effect, also committed the crime.
Your reasoning only holds with respect to civil liability, I think. IANAL, but it is my understanding that all perpetrators of a crime can be held equally responsible, like the driver of a getaway car being tried for the murder of a bank guard.
Similarly, the general giving the order as well as the private carrying out the order can both be held criminally responsible for war crimes. This has happened in the past. Nazi high commanders as well as concentration camp executioners were both held criminally responsible after WWII.
Finally, if we were to divide up responsibility, the one most morally responsible, IMHO, is the bastard giving the orders in the first place. The criminal liability on the guy following the orders often seems to hinge, in practice, on how enthusiastically the illegal orders were followed, starting with determining if the subordinate ever questioned the illegal orders.
Well, it takes two to be murdered. One to kill and one to be careless enough to be a victim.
While courts can apportion blame that doesn’t meant mean they always do so. (I’m blanking on the name but there is a famous political case connected to Teapot Dome, I think, in which someone was convicted of taking a bribe that the briber was acquitted of offering.)
In the case of illegal orders, it’s my understanding that the issuing of the orders is a crime in itself. Killing someone with a gun is a crime, but so is wounding someone with a gun, missing that someone with the bullet, and just brandishing the gun in the victim’s face and walking away. We do, both legally and morally, take the consequences of an illegal action into account, but it’s committing the illegal action in the first place that’s the crime.
Now, if you’re asking what the Uniform Code of Military Conduct says, then you can Google it to find out. But it certainly seems to me that you are looking for a moral debate, in which case this should be moved to GD. Please clarify.