Continuing with the second chapter, "Superior Orders and Reprisals," from his Nuremberg and Vietnam: An American Tragedy, General Taylor first discusses whether obedience or the laws of war take precedence, legally, when the two requirements conflict. After surveying the relatively ambiguous legal history of the issue, he considers two ways that a plea of superior orders can be used for the defense in war crimes charges: first, it can be used as an appropriate defense, based on lack of knowledge of an order's unlawfulness and the presumption in favor of obedience; second, it can be used in mitigation, based on the fear of punishment for disobedience. The second issue considered is whether reprisals or the practice of taking hostages would constitute a legal justification for what would otherwise be against the laws of war. Taylor briefly suggests some reasons why we might want such a legal position, but then points out that current law forbids taking hostages and restricts the "permissible scope of reprisals.
Moral responsibility is all very well, the reader may be thinking, but what about military orders? Is it not the soldier's first duty to give instant obedience to orders given by his military superiors? And apart from duty, will not the soldier suffer severe punishment, even death, if he refuses to do what he is ordered to do? If, then, a soldier is told by his sergeant or lieutenant to burn this house or shoot that prisoner, how can he be held criminally accountable on the ground that the burning or shooting was a violation of the laws of war?
From Nuremberg and Vietnam:An American Tragedy by Telford Taylor. Copyright 1970 by the New York Times Book Company. Reprinted by permission of Times Books, a division of Random House, Inc.