Agreed. Even though I'm generally against the death penalty for other reasons; you could argue this on a legal standpoint, also; much like the arguments that were laid out to ban executions of minors, the mentally retarded, and the insane.

Not to equate soldiers on their level; I'm just saying that from a legal standpoint you could argue that soldiers in the circumstances you laid out above wouldn't be fully morally culpable for their actions, and are generally deserving of some slack.

But this argument only covers those who's culpability was hindered by such psychological impact as combat, and well the confusion of war that you explained (or, basically only soldiers). Generals, or civilian politicians, however, who make illegal decisions that lead to the death of innocent civilians are definitely more culpable than the soldiers actually on the ground. What I meant by the idea that the government or military is considered to be above the law was that the sickening thing about this is that the upper chain of command, the people generally more culpable, aren't reprimanded but the blame (if it does indeed fall) usually falls on the soldier.

Of course there are exceptions to this rule: obviously combat doesn't turn all soldiers into genocidal killing machines, so I think there is a level of culpability in many circumstances. Especially in clear-cut blatant cases as you said.