Vice Admiral Bradley to testify about Hegseth's order to 'kill everyone'

Navy Vice Adm. Frank "Mitch" Bradley will testify today before the chairs of the armed services committees and top Democrats, regarding the second strike on survivors following an attack on a "drug" boat in early September.  Below is a primer on disobeying unlawful orders prepared by Just Security:

 It has long been the case under customary international law that “superior orders” is no defense for war crimes. The Charter of the International Military Tribunals at Nuremberg and Tokyo excluded the defense (arts. 8 and 6, respectively), as did the 1950 Nuremberg Principles (prin. IV). The absence of a superior orders defense has also been confirmed in the statutes of modern war crimes tribunals, including those of the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda (arts. 33, 7, and 6, respectively). Indeed, the defense is unavailable to international law violations generally. For instance, the U.N. Convention Against Torture and the Inter-American Convention on the Forced Disappearance of Persons prohibit superior orders as a defense in national legislation implementing their prohibitions (arts. 2 and VIII, respectively). 

As with the affirmative duty to disobey an unlawful order, the ICRC has accurately stated that under customary international law, “[o]beying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.” (ICRC Customary International Humanitarian Law study, Rule 155). 

U.S. military law likewise rejects the defense of superior order in the Manual for Courts-Martial. Rule 916(d) provides, “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” The touchstone case reflecting the principle is U.S. v. Calley, which dealt with the murder of 22 children, women, and old men in the South Vietnamese village of My Lai. Lt. Calley claimed he was obeying an order because “he had been taught the doctrine of obedience throughout his military career” and that he “was acting in ignorance of the laws of war.” The U.S. Court of Military Appeals held that, 

the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.

The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.

Thus, it is unlawful to obey an unlawful order, and merely following clearly illegal orders provides no defense. This being so, the questions in the Sept. 2 strikes are whether Secretary Hegseth’s reported order to Adm. Bradley was clearly unlawful and whether Bradley’s apparent follow-on order to conduct the second strike was likewise manifestly unlawful.

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