Befehl ist Befehl – we were only obeying orders: Early Days of Prosecuting the Capitol Rioters

Befehl ist Befehl – we were only obeying orders: Early Days of Prosecuting the Capitol Rioters

What is obedience and who do we obey? When?

These are questions that are most readily shown in the military context, but they aren’t even that easily answered there. So how can a civilian know when they should listen to their government officials and when not to?

  • Is the law or situation just?
  • Is the law or situation clear?

Women all over the world use the justification that their partner was abusing them, so they committed a crime at their behest. To diminish their responsibility for the actions and harms that followed. They are/were in prison nonetheless. A famous case in Canada is Paul and Karla Bernardo. Karla claimed Paul harmed her and convinced her to kill young women for his pleasure. She was given a lesser sentence and is out now.

As the early cases from the insurrgency attempt of Jan 6, 2021 go before the courts of the USA, that is the defense the accused are using. The US seated president appeared to be ordering them to act on his behalf. Or senators and Trump’s family were.

They were ordinary lay people, who thought they were doing the right thing and were being misdirected by those in authority. It was a plot though and it can be questioned how they were so deluded that a rightfully seated POTUS would have need of their aid? But then again, they have the history of the civil war. When many civilians were called to the battle. And this is what they thought was happening. Rightly or wrongly.

So what do you think? Should they bear the weight of the insurrection, or not?

  • Were they following orders at all? Were they in effect soldiers for the POTUS, by his direction? Or deluded?
  • Was the situation so unusual that ordinary citizens should be called upon to act for the govt? In lieu of the military or police?
  • Was something actually wrong? Were the orders just?
  • Were they even orders?


The legal eagle: sedition, terrorism, hostages, intention to commit a crime, acting on apparent orders of Trump, his family and members of congress. Vs the rioters’ responsibility under the law.

And with proof all over social media, how can they just charge the rioters?

They can document the exchanges, even up to and including the debate between Biden and Trump, when Trump specifically spoke to the Proud Boys.

The Legal Eagle on incitement:

Doesn’t Trump then have to be indicted? Impeached? (x2) He seems to accuse others of interfering with elections but gets caught going to lengths himself to intrude.


resources – military
(there are some really cool theories on obedience, from a psychological POV included in this paper. If you’re interested. Kohlberg and Milgram)



“the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

…. Intnat’l Military Precedent
The judges at Nuremberg rejected the “following orders” defense. They said that when an individual follows an order that is illegal under international law, he is responsible for that choice, except under certain circumstances. For instance, if the individual could prove that he was ignorant of the fact that the order was illegal, he would not be responsible. But the judges at Nuremberg maintained that it would have been impossible for members of Einsatzgruppen not to know that murdering civilians was both illegal and immoral. Another exception, the judges said, would be if a person obeyed an illegal order to avoid physical harm, torture, or death.


  • the laws and customs of war, as well as
  • the ordinary principles of criminal law,
  • allowances for the rank of the accused and if his punishment is lessened in certain circumstances, such as the following:
  • he was not entirely a free agent;
  • there was no way for him to know definitely that he was violating the laws and customs of legitimate warfare;
  • the illegal order was obeyed under stress,
  • at a period of great danger,
  • during hostilities, or the like;
  • the command required instant obedience in carrying out an act that could not be postponed.


“Maxwell Case” dating from the Napoleonic Wars
Scotland court declared that “every officer has a discretion to disobey order against the known laws of the land.”


Mitchell v. Harmony, a civil suit growing out of the Mexican War.
The court refused to consider this plea. Chief Justice Taney of the United States Supreme Court declared: “It can never be maintained that a military officer can justify himself for doing an unlawful act by producing the order of his superior. The order may palliate, but it cannot justify” the deed.


The United States v. John Jones, some members of the crew of an American privateer were tried because, during the War of 1812,
the justice said: “This doctrine, … alarming and unfounded, is repugnant to reason, and to the positive law of the land. No military or civil officer can command an inferior to violate the laws of his country; nor will such command excuse, much less justify the act. Can it be for a moment pretended, that the general of an army, or the commander of a ship of war, can order one of his men to commit murder or felony? Certainly not.”


US military court point of view. – The absolute rule which holds the soldier responsible if the order turns out in fact to have been unlawful is qualified in these decisions. They tend to grant immunity if the soldier obeyed an order which was not “palpably” illegal.


English legal history is that of Regina v. Smith. During the Boer War
a special court tried Smith for murder and acquitted him. The court said, “I think it is a safe rule to lay down that if a soldier believes he is doing his duty in obeying commands of his superior, and if the orders are not so manifestly illegal that he must or ought to have known they were unlawful, the private soldier would be protected by the orders of his superior officer.”


The German View
In the Llandovery Castle case The German Supreme Court turned a deaf ear to their plea and declared, “Military subordinates are under no obligation to question the order of their superior officers, and they can count upon its legality. But no such confidence can be held to exist if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. … They should, therefore, have refused to obey. As they did not do so, they must be punished.”

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