Consider it like you might consider yourself as a boss of a company.
1) If one or a number of your employees breaks the law, on or off duty, then it is that employee that is liable, in my ethical (not legal) opinion.
2) If I or another manager order an employee to do such an illegal act, then both manager and subordinate are liable.
3) There's got to be proof of both in 2) or in either case to indict one.
4) There's a problem, though, when illegal acts become a culture in an organization. A manager can't hide behind the law and allow tortures to continually happen and use the reverse-Nuremberg defense.
5) In any case, if the military head of command sees these things happen, it is minimally incompetence and a disgrace to his unit; and heads should roll after a review of the internal code.
6) Finally, there's always the Jack Bauer code of ethics. If you see some bad shit coming for a large number of people, and you see that you would have to do something bad to stop it, then make your own call. Just know that it doesn't make you immune from prosecution just because you may or may not have saved the world.
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