Commanded and Commanding Defenses

TL;DRAbstract

In the previous two chapters, I argued that both soldiers and commanders can be held liable and prosecuted for war crimes, but that mens rea creates various problems that are often hard to get around. I now wish to investigate superior orders, duress, and necessity, the leading bases for mitigation, and even for a complete defense, of criminal liability in war crimes cases. In the case of soldiers, it is initially very easy to see why superior orders, duress, and necessity are so important, because soldiers clearly do not plan or even intend to commit harm but only to do their duty; rather, it is their superiors who do the planning and who order the soldiers simply to comply with their orders, often under significant threat. But it is also true of commanders that they are often responding to what seems to be necessary to win a battle, or even the war, or to do what is necessary to protect their troops. Thus, they are simply attempting to do their duty rather than intending to do wrong.

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