Practice Relating to Rule 154. Obedience to Superior Orders
Additional Protocol I (draft)Article 77(1) of the draft Additional Protocol I submitted by the ICRC to the CDDH provided: “No person shall be punished for refusing to obey an order of his government or of a superior which, if carried out, would constitute a grave breach of the provisions of the Conventions or of the present Protocol.”
This proposal was subject to amendments and referred to Working Group A of Committee I where it was adopted by 38 votes in favour, 22 against and 15 abstentions.
The approved text provided: “The High Contracting Parties undertake to ensure that their internal law penalizing disobedience to orders shall not apply to orders that would constitute grave breaches of the Conventions and this Protocol.”
Eventually, however, it was deleted in the plenary, because it failed to obtain the necessary two-thirds majority (36 in favour, 25 against and 25 abstentions).
Inter-American Convention on the Forced Disappearance of Persons Article VIII of the 1994 Inter-American Convention on the Forced Disappearance of Persons provides: “All persons who receive [orders or instructions that stipulate, authorize, or encourage forced disappearance] have the right and duty not to obey them.” However, Article XV excludes its application in international armed conflicts governed by the 1949 Geneva Conventions and their 1977 Additional Protocols.
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Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions Paragraph 3 of the 1989 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions provides:
Governments shall prohibit orders from superior officers or public authorities authorizing or inciting other persons to carry out any such extralegal, arbitrary or summary executions. All persons shall have the right and the duty to defy such orders. Training of law enforcement officials shall emphasize the above provisions.
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Paragraph 25 of the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provides:
Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials.
UN Declaration on Enforced DisappearanceArticle 6(1) of the 1992 UN Declaration on Enforced Disappearance provides:
No order or instruction from any public authority, civilian, military or other, may be invoked to justify an enforced disappearance. Any person receiving such an order or instruction shall have the right and duty not to obey it.
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AustraliaAustralia’s Defence Force Manual (1994) provides: “If an order is ambiguous, clarification should be sought. If clarification is unavailable, any action taken must comply with LOAC [law of armed conflict].”
Australia’s LOAC Manual (2006) states: “If an order is ambiguous, clarification should be sought. If clarification is unavailable, any action taken must comply with LOAC.” The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
BelgiumBelgium’s Disciplinary Regulations (1991) provides: “Soldiers must loyally execute … orders given by their superiors in the interest of the service”.
However, the Regulations adds: “An order must not be executed if this execution can manifestly lead to the perpetration of a crime or an offence.”
Burkina FasoBurkina Faso’s Disciplinary Regulations (1994) provides: “The subordinate loyally executes orders he receives.” It also states: “The subordinate is responsible for the execution of the order received. He is liable to penal and/or disciplinary sanctions for refusing to obey when he wrongly invokes a motive of any sort.”
CameroonCameroon’s Disciplinary Regulations (1975) provides: “Obedience is the first duty of the subordinate and he shall loyally execute the orders he receives.”
However, the manual also states:
The subordinate [is released from] his penal responsibility when he obeys orders of his superior …
If the order is manifestly illegal or stipulates the commission of an illegal act [in the meaning of Article 17 of the Disciplinary Regulations which provides for criminal responsibility, inter alia, for acts in violation of the laws and customs of war], the subordinate engages his penal responsibility …
The subordinate who believes he is being confronted with an illegal order has the duty to communicate his objections to the authority which gives them … If the order is maintained … concerning acts contrary to the laws and customs of war, the subordinate has the absolute right not to execute the order.
Cameroon’s Instructor’s Manual (1992) provides: “It is forbidden for a soldier to obey orders constituting a crime.”
Cameroon’s Instructor’s Manual (2006) states: “It is prohibited for soldiers to obey criminally unlawful orders.”
Cameroon’s Disciplinary Regulations (2007) states:Article 19: Obedience
Since any commander derives from the law the authority which is vested in him, the obedience which is due to him by his subordinates is nothing but an act of submission to the law, the expression of the national will.
Obedience is thus the first duty of the subordinate and he shall loyally execute the orders he receives.
Article 20: Personal responsibility
The subordinate is responsible for the execution of orders or of the consequences of their non-execution. That responsibility excludes passive obedience.
He must embrace not only the letter but also the spirit of the orders received.
The commander being responsible for the orders he gives, reclamation is not permitted to the subordinate but when he has obeyed, except where the provisions of Article 21 below are concerned.
Article 21: Penal responsibility
The subordinate is released from his penal responsibility when he obeys orders of his superior, in conformity with Article 83-1 of the Penal Code.
If the order is manifestly illegal or stipulates the commission of an illegal act, in the meaning of Article 17 of the present Regulations, the subordinate engages his penal responsibility, according to the provisions of Articles 82-b and 83-2 of the Penal Code.
The subordinate who believes he is being presented with an illegal order has the duty to communicate his objections to the authority which has given them; he expressly indicates the illegal signification he gives to the disputed order. He receives any useful explication and necessary interpretation from his commander.
If the order is maintained:
- concerning acts contrary to the laws and customs of war, the subordinate has the absolute right not to execute the order.In case of error, the subordinate cannot be exonerated of the sanctions which are implied in the non-execution of the order and its consequences.
If the subordinate is compelled by force or physical threat, he shall be completely relieved of his penal responsibility.
CanadaCanada’s Code of Conduct (2001) instructs soldiers that:
Orders must be followed. Military effectiveness depends on the prompt obedience to orders. Virtually all orders you will receive from your superiors will be lawful, straightforward and require little clarification. What happens, however, if you receive an order that you believe to be questionable? Your first step of course must be to seek clarification. Then, if after doing so the order still appears to be questionable, in accordance with military custom you should still obey and execute the order – unless – the order is manifestly unlawful.
The Code of Conduct further states:
It is recognized that the lower you are in rank, the more difficult it will be to question orders. However, every member of the CF [Canadian Forces] has an obligation to disobey a manifestly unlawful order regardless of rank or position. A manifestly unlawful order is one which shocks the conscience of every reasonable, right-thinking person. For example, mistreating someone who has surrendered or beating a detainee is manifestly unlawful.
Rule 11 of Canada’s Code of Conduct (2005) instructs soldiers:4. Orders must be followed. Military effectiveness depends on the prompt obedience to orders. Virtually all orders you will receive from your superiors will be lawful, straightforward and require little clarification. What happens, however, if you receive an order that you believe to be questionable? Your first step of course must be to seek clarification. Then, if after doing so the order still appears to be questionable, in accordance with military custom you should still obey and execute the order – unless – the order is manifestly unlawful.
5. It is recognized that the lower you are in rank, the more difficult it will be to question orders. However, every member of the CF [Canadian Forces] has an obligation to disobey a manifestly unlawful order regardless of rank or position. A manifestly unlawful order is one which shocks the conscience of every reasonable, right-thinking person. For example, mistreating someone who has surrendered or beating a detainee is manifestly unlawful.
Central African Republic
The Central African Republic’s Disciplinary Regulations (2009) states: “The subordinate refusing to execute an order whose unlawful nature has not been demonstrated is at fault.”
CongoThe Congo’s Disciplinary Regulations (1986) provides: “Obedience is the first duty of the subordinate. He loyally executes orders he receives.” However, it adds: “The subordinate must not execute an order to commit an act manifestly … contrary to the customs of war and to the international conventions.”
Dominican RepublicThe Dominican Republic’s Military Manual (1980) tells soldiers that although “you are responsible for promptly obeying all legal orders issued by your leader … you are obligated to disobey an order to commit a crime”.
El SalvadorEl Salvador’s Human Rights Charter of the Armed Forces instructs members of military forces to “execute orders as far as possible in the scope of the law. If orders are a crime against human rights, do not execute them because they violate the law.”
FranceFrance’s Disciplinary Regulations (1975), as amended, states that members of the military “have the duty to obey lawful orders”.
The Regulations further provides:
The subordinate shall not carry out an order to do something that is manifestly unlawful or contrary to the customs of war, the rules of international law applicable in armed conflicts, or duly ratified or approved international treaties.
GermanyGermany’s Military Manual (1992) provides:
According to German law an order is not binding if:
– it violates the human dignity of the third party concerned or the recipient of the order;
– it is not of any use for service; or
– in a definite situation, the soldier cannot reasonably be expected to execute it.Orders which are not binding need not be executed by the soldier.
The manual further states that “moreover, it is expressly prohibited to obey orders whose execution would be a crime” and that “punishment for disobedience or refusal to obey shall be impossible if the order is not binding (§ 22 of the Military Penal Code)”.
Israel’s Manual on the Rules of Warfare (2006) states:[U]nder Israeli law … a soldier who has carried out an unlawful order will not be charged with an offence. Only if the order itself is patently unlawful is he required not to perform it, and indeed, under Israeli law, he would have no defence if he did execute it.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
ItalyItaly’s IHL Manual (1991) states:
Concerning the norm and the consequent disciplinary rule, “the soldier who is requested to obey an order which manifestly violates State institutions or an order whose execution would anyway constitute a manifest crime, is under the obligation not to execute that order and inform his superiors as soon as possible.
NetherlandsAccording to the Military Handbook (1995) of the Netherlands, an order issued in time of war that would lead to a war crime if complied with should be refused. It explains that soldiers have a duty to refuse to obey an order if they know or if it is manifest, given the facts known to them, that it constitutes a war crime.
The Military Manual (2005) of the Netherlands states that “compliance [with the humanitarian law of war] should take place at all times. No one may be ordered to break these rules. Such an order is unlawful and must not be obeyed.”
New ZealandNew Zealand’s Military Manual (1992) provides: “One such obligation, and the one which clearly sets a member of a military force apart from his civilian counterparts, is the obligation to obey lawful commands of a superior officer.”
The manual adds, however: “If a command is unlawful and is obeyed, the person who obeys it could find himself charged with a criminal offence or a war crime”.
The manual also states:
If it is obvious that an order is unlawful, then it should not be obeyed. Orders which are obviously unlawful are extremely rare. An order to torture or kill prisoners of war or innocent civilians or to loot civilian property would be obviously unlawful. This kind of order should never be obeyed and it should never be assumed that it will provide a defence if a charge results from its obedience.
The manual further points out:
If … an unclear order is received, and especially if one of the possible meanings of the order appears to be unlawful, then clarification should be sought immediately. Blind obedience, in such cases, is not what is required. In … cases of unclear orders, blind obedience could lead to unfortunate and perhaps unforeseen results. In our example, both the sergeant and the superior whom we infer meant to convey nothing in any way illegal, could find themselves the subject of serious cha
rges, simply because an unclear order was not clarified or questioned.
PeruPeru’s Human Rights Charter of the Security Forces (1991) provides that, if they believe an order violates human rights, members of the armed and police forces are required to seek more justifications for its execution.
PhilippinesThe Code of Ethics (1991) of the Philippines provides:
Every officer and soldier shall obey the lawful orders of his immediate superior. Anyone who shall refuse or fail to carry out a lawful order from the military chain of command shall be subject to military discipline.
RwandaRwanda’s Disciplinary Regulations provides that a subordinate may not execute a manifestly unlawful order.
South AfricaSouth Africa’s LOAC Manual (1996) states:
Every soldier has a duty to obey lawful orders of superiors. Failure to do so is a serious offence. However, an order to commit a war crime is an unlawful order. A person who commits a war crime pursuant to an order is guilty of a war crime if that person knew or should have known that the order was unlawful.
The manual further states: “The Constitution of the Republic of South Africa, 1996, provides that ‘no member of any security service may obey a manifestly illegal order’ [Section 199(6)].”
South Africa’s Medical Services Military Manual provides: “When an order is manifestly illegal the subordinate has the duty to refuse to obey.”
South Africa’s Revised Civic Education Manual (2004) states: “[A]n order to commit a war crime is an illegal order. … The Constitution of the Republic of South Africa, 1996, provides that ‘no member of any security service may obey a manifestly illegal order’ (Section 199(6)).”
Spain’s LOAC Manual (2007) states that “combatants are not bound to obey orders if they involve carrying out acts that are manifestly contrary to the laws and customs of war or constitute a crime”.
United Kingdom of Great Britain and Northern IrelandThe UK LOAC Pamphlet (1981) provides: “Military personnel are required to obey lawful commands but must not obey unlawful commands.”
The Pamphlet further states: “Illegal orders are not to be given nor carried out.”
United States of AmericaThe US Field Manual (1956) states: “Members of the armed forces are bound to obey only lawful orders.”
The US Air Force Pamphlet (1976) states: “Members of the armed forces are bound to obey only lawful orders.”
The US Soldier’s Manual (1984) tells the soldier: “Although you are responsible for promptly obeying all legal orders issued by your leader, you are obligated to disobey an order to commit a crime.”
The US Naval Handbook (1995) provides:
Members of the naval service, like military members of all nations, must obey readily and strictly all lawful orders issued by a superior. Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict. [emphasis in original]
UruguayUruguay’s Disciplinary Regulations (1980) provides: “No subordinate shall hesitate to challenge the orders of his commanding officer when he deems it necessary.”
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ArgentinaArgentina’s Code of Military Justice (1951), as amended in 1984, applies disciplinary sanctions to military personnel who refuse to obey a military order given by a superior (insubordination). Similarly, it defines the crime of disobedience, which includes actions by military personnel who, while not ostensibly or expressly refusing to obey, fail without any just cause to carry out a military order. It adds that no excuse shall justify disobedience or the failure to carry out a military order.
ArmeniaUnder Armenia’s Penal Code (2003), failing to carry out a “properly given legitimate order” in time of war is a punishable offence.
However, under the Code, “refusal to execute an obviously illegal order or instruction is an exemption from criminal liability”.
AustraliaUnder Australia’s Defence Force Discipline Act (1982), disobedience to a “lawful command” is a punishable military offence.
Australia’s Defence Force Discipline Act (1982), as amended in 2007, states:27 Disobeying a lawful command
(1) A defence member is guilty of an offence if:
(a) a person gives the member a lawful command; and
(b) the person giving the command is a superior officer; and
(c) the member disobeys the command.Maximum punishment: Imprisonment for 2 years.
AustriaAustria’s Military Penal Code (1970), as amended, provides for the punishment, in principle, of the non-execution of orders.
However, the Code also provides that a soldier is not punishable if he/she does not execute an order which consists in the commission of a punishable offence.
BelarusUnder Belarus’s Criminal Code (1999), the failure to execute an order is a punishable offence.
BelgiumBelgium’s Law on Discipline in the Armed Forces (1975) provides:
Soldiers must faithfully execute the orders given to them by their superiors in the interest of service. However, an order must not be executed if its execution could clearly result in the perpetration of a crime or an offence.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Law on Service in the Armed Forces (2005) states:(1) Military personnel shall be obliged to execute orders of their superiors that are related to the service, with the exception of orders that contain elements of a criminal offence.
(2) When they receive an order with elements of a criminal offence, military personnel shall be obliged to immediately inform the superior officer of the superior who issued the order.
BrazilUnder Brazil’s Military Penal Code (1969), disobedience to a lawful order is a punishable offence.
ChileChile’s Code of Military Justice (1925) provides:
All military personnel are obliged to obey an operational order given them by a superior in the exercise of his legitimate powers … The right to demand that the acts of a superior yield to the statutes or regulations does not exempt the subordinate from obedience nor does it suspend the fulfilment of an operational order.
The Code further provides:
Where the order is clearly conducive to the perpetration of an offence, then the subordinate may suspend the performance of the said order and, in urgent cases, modify it, immediately reporting this to the superior … If the superior insists on maintaining the order, it shall be carried out under the terms of the previous article.
CroatiaUnder Croatian law, soldiers have the duty to obey orders, unless an order would lead to a war crime or any other serious crime. Members of the armed forces are required to report unlawful orders they may have received.
Croatia’s Defence Act (2002), as amended in 2007, states: “A member of the Armed Forces is allowed to disobey a command if this implies action contrary to the provisions of the Constitution and rules of international humanitarian law.”
CubaUnder Cuba’s Military Criminal Code (1979), disobedience or failure to obey an order is a punishable offence, but if the order is regarded as an excessive requirement, the court may apply special mitigation of the sanction.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Constitution of the Transition (2003) provides:No one is required to execute a manifestly illegal order, in particular if it violates the fundamental liberties and rights of the human person.
Proof of the manifest illegality of the order falls to the person who refuses to execute it.
The Democratic Republic of the Congo’s Constitution (2006) provides:No one is required to execute a manifestly illegal order. Every individual, every agent of the State is released from the duty of obedience if the order received constitutes a manifest violation of respect for human rights and public liberties and morals.
Proof of the manifest illegality of the order falls to the person who refuses to execute it.
EgyptUnder Egypt’s Military Criminal Code (1966), failure to execute orders is punishable if the order in question is “legal”. However, it also provides for the punishment of persons who do not obey “military orders”.
El SalvadorEl Salvador’s Law on the Armed Forces (1998) provides: “The duty to obey is limited to those orders that do not transgress statutory or regulatory provisions in force.”
France’s Code of Defence (2004), as amended in 2007, states: Soldiers must obey the orders of their superiors … Nonetheless, they may not be ordered to undertake and they may not undertake any acts contrary to the laws [and] customs of war and to the international conventions.
France’s Code of Defence (2004), as amended in 2008, states: D.4122-2.When exercising the authority of a commander, the member of the military … [h]as the right and the duty to demand obedience from subordinates; he cannot order the performance of acts contrary to the laws, rules of international law applicable to armed conflicts and international conventions in force.
D.4122-3.As a subordinate, the member of the military … [s]hall not execute an order that prescribes the performance of an act evidently illegal or contrary to the rules of international law applicable to armed conflicts and the international conventions in force.
GermanyGermany’s Law on the Legal Status of Military Personnel (1995) stipulates that it is not to be regarded as disobedience if the subordinate does not carry out an order which would violate human dignity.
The Law also provides: “An order may not be complied with if, by that, a criminal act would be committed.”
Hungary’s Law on National Defence and the Hungarian Defence Forces (2004) states: “The soldier is obliged to obey the order of the superior during service, except if by following the order he would commit a crime.”
IndiaUnder India’s Army Act (1950) and under other laws applicable to coast guards and border police forces, disobedience to a lawful order is an offence.
JordanUnder Jordan’s Military Criminal Code (1952), disobedience to a lawful order is a punishable offence.
KenyaUnder Kenya’s Armed Forces Act (1968), disobedience to a lawful command is an offence.
MalaysiaMalaysia’s Armed Forces Act (1972) provides:
Every person subject to service law under this Act who in such manner as to show wilful defiance of authority disobeys any lawful command of his superior officer shall on conviction by court-martial be liable [to punishment].
Every person subject to service law under this Act who, whether wilfully or through neglect, disobeys any lawful command of his superior officer shall on conviction by court-martial be liable [to punishment].
However, in a footnote related to the foregoing provision, the Act states with respect to “lawful command”: “The command must not be contrary to Malaysian or international law … If a command is manifestly illegal the person to whom it is given would be justified in questioning and even refusing to execute it.”
Mexico’s Law on the Discipline of the Army and Air Force (1926), as amended to 2004, states: It is strictly prohibited for a member of the military to give orders whose execution constitutes a crime; … the subordinate who carries out such orders will be held responsible according to the Code of Military Justice.
Mexico’s Law on the Discipline of the Navy (2002) states: Any [member of the navy] who received an order and who considers that executing this order would manifestly result in the commission of a punishable act or a disciplinary offence must bring this to the attention of the superior who gave this order. In case the order persists, he or she must solicit [the confirmation of the order and his or her warning as regards the order’s unlawfulness] in writing in order to preclude his or her responsibility [for carrying out a manifestly unlawful order].
NigeriaNigeria’s Army Act (1960) and Armed Forces Decree 105 (1993), as amended in 1994, provide that military personnel have the duty to obey lawful orders.
PakistanUnder Pakistan’s Army Act (1952), a soldier is liable to punishment if he disobeys a “lawful command”.
Pakistan’s Frontier Corps Ordinance (1959) provides for the punishment of “every member of the Frontier Corps who – … while on active service – … disobeys the lawful command of his superior officer”.
PeruUnder Peru’s Code of Military Justice (1980), refusal or failure to execute a military order in wartime constitutes a punishable offence. Failure to carry out an order in the course of duty without justifiable cause constitutes disobedience.
Peru’s Law on the Disciplinary Regime of the National Police (2004) states: “A subordinate is not obliged to obey orders that lead to the violation of human rights or the commission of a crime, misdemeanour or administrative infraction.”
Peru’s Code of Military and Police Justice (2006) states:The following shall be exempt from criminal responsibility and sanctions:
8. Any person who refuses to comply with an order of a superior or competent authority and the order is manifestly unconstitutional or unlawful or contravenes the customs of war.
Peru’s Law on the Disciplinary Regime of the Armed Forces (2007) states:If orders contravene the constitutional legal order and involve the commission of a crime or the violation of a person’s fundamental rights, subordinate personnel shall not be obliged to obey them and shall justify to their superior by giving them in writing the reasons for their conduct. If circumstances do not allow for a justification in writing, subordinate personnel may give them orally.
PolandPoland’s Penal Code (1997) provides: “A soldier who does not execute or refuses to execute an order or executed an order in a way inconsistent with its contents, shall be punished.”
However, the Code also states:
1. A soldier who refuses to execute an order consisting in committing an offence or does not execute it, does not commit an offence described in Art. 343.
2. In case of the execution of an order mentioned in § 1 in a way inconsistent with its contents in order to diminish the harmfulness of the acts, the court may apply an extraordinary mitigation of punishment or desist from inflicting it.
Russian Federation The Russian Federation’s Criminal Code (1996) provides:
Article 42. Execution of Order or Instruction
1. Infliction of harm to legally protected interests shall not be qualified as an act of crime provided it was caused by a person acting in execution of an order or instruction binding on him. Criminal responsibility for infliction of such harm shall be borne by a person who gave the illegal order or instruction.
2. A person who committed an intentional offence in execution of an order or instruction known to be illegal, shall be liable under the usual terms. Failure to execute an order or instruction known to be illegal shall preclude criminal liability.
Article 332. Failure to Execute an Order
1. Failure to execute a superior’s lawful order by a subordinate, if it has caused substantial harm to the interests of military service, shall be punishable by restriction in military service for a term of up to two years or by arrest, for a term of six months, or by custody in a disciplinary military unit for a term of up to two years.
2. The same deed, committed by a group of persons, a group of persons in a preliminary conspiracy, or by an organized group, and also entailing severe consequences, shall be punishable by deprivation of liberty for a term of up to five years.
3. Failure to execute an order, due to a careless or dishonest attitude to military service, if it has involved serious consequences, shall be punishable by restriction in military service for a term of up to one year, or by arrest for a term of three to six months, or by custody in a disciplinary military unit for a term of up to two years.
Rwanda’s Constitution (2003) provides:In all circumstances, every citizen, whether civilian or military, has the duty to respect the Constitution, other laws and regulations of the country.
Every citizen has the right to defy orders received from his or her superior authority if the orders constitute a serious and manifest violation of human rights and public freedoms.
South AfricaSouth Africa’s Code of Military Discipline (1957), as amended in 1995, in a provision entitled “Disobeying lawful commands or orders”, provides:
Any person who in wilful defiance of authority disobeys any lawful command given personally by his superior officer in execution of his duty, whether orally, in writing or by signal, shall be guilty of an offence and liable on conviction.
South Africa’s Constitution (1996) provides: “No member of any security service [i.e. defence force, police force and intelligence services] may obey a manifestly illegal order.”
South Africa’s Defence Act (2002) provides: “No member of the Defence Force may obey a manifestly illegal order.”
SpainSpain’s Royal Ordinance for the Armed Forces (1978) provides: “Where an order would entail the execution of acts which are manifestly contrary to the laws and customs of war or constitute a crime … no soldier is bound to obey it.”
Spain’s Penal Code (1995) provides that criminal liability is not incurred by authorities or public employees who do not comply with an order constituting a clear, manifest and definite breach of a precept of law or any other general provision.
Spain’s Law on the Military Career (2007) states: “If orders entail the commission of criminal acts, particularly those contrary to the Constitution or persons and objects protected in case of armed conflict, the serviceman or servicewoman shall not be bound to obey them.” Spain’s Royal Ordinances for the Armed Forces (2009) states: “If the orders [given by a superior] are expected to result in the execution of acts constituting an offence, in particular … against protected persons and objects in the context of an armed conflict, the member of the armed forces will not be under the obligation to obey them.”
TajikistanTajikistan’s Criminal Code (1998) provides: “Non-execution of a knowingly unlawful order or instruction excludes criminal responsibility.”
UruguayUruguay’s Organizational Law of Armed Forces (1974) states that military status imposes a fundamental “duty of obedience, respect, and subordination to the superior at all times and in all places, in accordance with the laws and regulations in force”.
Venezuela’s Penal Code (2005) states: Penalties shall not apply to:
1. Whoever acts fulfilling a duty or in the lawful exercise of a right, position of authority, office or post, without trespassing the law.
Venezuela’s Constitution (2009) states:The public authorities, whether military, civilian or of any other kind, even during a state of emergency, exception or restriction … are prohibited from committing, permitting or tolerating the forced disappearance of persons. An officer receiving an order or instruction to carry it out, has the obligation not to obey and to report the order or instruction to the competent authorities.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.”
Viet Nam’s Law on Viet Nam People’s Army Officers (1999) states:Upon receipt of orders from their commanders, if officers have grounds to believe that such orders contravene laws, they shall have to immediately report such to the persons who have issued such orders; in cases where they still have to obey the orders, they shall have to promptly report to the immediate superiors of the persons who have issued such orders and shall not have to bear responsibility for the consequences arising from the implementation of such orders.
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BelgiumIn the Sergeant W. case in 1966, Belgium’s Court-Martial of Brussels sentenced a sub-officer to three years’ imprisonment for the wilful killing of a civilian. The accused, who at the time of the event was chasing rebels, was serving in the Congolese army within the framework of military technical co-operation between Congo (Democratic Republic of the Congo) and Belgium. The Court held that the accused’s interpretation of the order he had received, i.e. to kill an unarmed person in his power, was manifestly unlawful; the accused therefore had a duty to disobey this order.
CanadaIn his dissenting opinion in the Finta case before the Canadian Supreme Court in 1994, one of the judges recognized that “military orders can and must be obeyed unless they are manifestly unlawful”. He added that an order was manifestly unlawful when it “offends the conscience of every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong. The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.”
ChileIn its judgment in the Guzmán and Others case in 1974, Chile’s Santiago Council of War stated:
The provisions of Article 335 of the Code of Military Justice [which provides for the right to disobey an unlawful order] require that: a) an order be received from a hierarchical superior; b) that this order be related to the military service; and c) that the subordinate has explained the illegality of the order to the superior, and that the latter has insisted on the order’s performance.
ColombiaIn a case relating to conscientious objection in 1992, the Colombian Constitutional Court considered that a superior’s order that would consist of occasioning death outside combat would clearly lead to a violation of human rights and of the Constitution. As such it should be disobeyed. In another case in 1995, in which the Court was examining the constitutionality of a military regulation that provided that a subaltern was obliged to obey a superior’s order that he/she thought unlawful, if the order was confirmed in writing, the Court took the same approach.
Democratic Republic of the Congo
In November 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Court of the Eastern Province held:War crime of violence to life and person
Whereas that offence is provided for and punished by article 8.2)c)i [of the 1998 ICC Statute];
Whereas that offence consists of the following constitutive elements:
1. The perpetrator must have killed one or more persons;Whereas, in the present case, the defendant Blaise Nogi Massaba has admitted having given the order to the group composed of warrant officer Batanga, Sergeant-Major Mwanga, Sergeant Ramazani, Captain Mpinda and Corporal Takakule, to promptly execute the pupils who had carried the pillaged objects, …
Whereas the defendant Blaise Bongi claims that he himself executed an order received from Major Faustin Kakule, who has contested this during the preliminary investigation and preparation of the trial;
Whereas article 28 of the Constitution of the Democratic Republic of the Congo stipulates:
“No one is required to execute a manifestly illegal order”;Whereas the unlawfulness of the order allegedly given by Major Faustin Kakule could not have been doubted and the defendant Blaise Bongi Massaba would have had to refuse executing it if such an order really had been given …
Whereas Professor Verhaegen reports, in this sense, the decision of the Belgian Military Court in 1966, which the Military Court embraces:
“the act does not only constitute murder according to the provisions of the Congolese [Penal] Code, but also a flagrant violation of the laws and customs of war and the laws of humanity;
the unlawfulness of the order being manifest, the defendant had to abstain from executing it”;Whereas, therefore, the criminal responsibility of the defendant Blaise Bongi Massaba can in no case be lifted.
In its judgment in the Hommel case in 2006, Denmark’s Eastern High Court was given evidence proving that, during interrogations of Iraqi detainees, an intelligence officer of the Danish armed forces had, inter alia, forced the detainees to stay in uncomfortable positions and used “forceful expressions”. The High Court stated:This process is in itself hardly in agreement with the protection afforded to detainees in accordance with the [Fourth Geneva] Convention’s Articles 27 and 31. However, the High Court shall not make any assessment hereof as the High Court is only to consider whether the defendant … during the interrogations has “gravely” neglected her military duties as stated in the indictment, in accordance with the Military Penal Code paragraph 27.
[I]t has to be noted that [the defendant] by her superiors was given the task of interrogating the detainees with the purpose of assessing whether they were to be released, whether they were normal criminals that were to be transferred to the Iraqi authorities or whether they were a danger to the Coalition so that they should be transferred to the British forces. She used methods, among others the dominating attitude, which she had learned during the POWEX-training, and which no one had informed her could no longer be used. She had no further guidelines for the interrogations, and was given no guidance from her superiors when she queried this. Nobody intervened in the individual interrogations. Neither did any of the detainees suffer any injury nor did they complain.
Under these circumstances, the High Court does not find that the defendant … “gravely” neglected her duties by interrogating the detained Iraqis under the circumstances that according to the individual indictments have been proven above.
GermanyIn its judgment in the Dover Castle case in 1921, Germany’s Imperial Court held: “It is a military principle that the subordinate is bound to obey the orders of his superiors.”
In 2005, in the Limits of Obedience to Superior Orders case, Germany’s Federal Administrative Court, in a military disciplinary matter, was called upon to decide whether a German soldier had violated his duty of obedience. The soldier had resisted orders to fulfil his tasks in an IT project, fearing to make a potential contribution to the 2003 Iraq conflict. The Federal Administrative Court held:4.1.2 Legal limits of obedience
According to Section 11, paragraph 1, sentence 1 of the Law on the Legal Status of Military Personnel [Soldatengesetz], every soldier of the Federal Armed Forces must obey his superiors. In accordance with Section 11, paragraph 1, sentence 2 of the Law on the Legal Status of Military Personnel, he must, to the best of his abilities, carry out their orders completely, conscientiously and immediately. The duty of obedience is one of the central duties of service of every soldier … However, the obedience demanded by the legislator (of the Law on the Legal Status of Military Personnel) is not a “blind” or “unconditional” obedience, which, e.g., Article 64, paragraph 1 of the constitution of the German Reich of 16 April 1871 … and also the service oath of the soldiers of the German Wehrmacht of 20 August 1934 … demanded of every soldier.
Based on the Basic Law of the Federal Republic of Germany and the Law on the Legal Status of Military Personnel, legal limits to the military ordering authority arise. They can be summarized in seven sub-categories, whose requirements and mutual relations, however, so far have not been sufficiently clarified and which therefore first have to be determined (see 126.96.36.199 to 188.8.131.52). In any case, in his consciously taken decision not to carry out the two orders directed at him, the soldier could invoke his basic right of freedom of conscience according to Article 4, paragraph 1 of the Basic Law (see 4.1.3).
184.108.40.206 In Section 11, paragraph 1, sentence 3, half-sentence 1, alternative 1 of the Law on the Legal Status of Military Personnel, the legislator, after laying down the general duty of obedience, has expressly ruled that it is not a case of disobedience of a soldier if an order is not carried out which violates human dignity. Human dignity, which, according to Article 1, paragraph 1 of the Basic Law, is “inviolable” (sentence 1) and to be respected and protected by “all State authority” (sentence 2), is violated if, on the basis of the order, the subordinate or a third person affected by the execution of the order is exposed to treatment which expresses contempt for or disregard for the value due to the human being by virtue of being a person … This is based on the idea of the human being as an intellectual-moral being which is meant to determine and develop itself in freedom. The Basic Law, however, understands this freedom not as that of an isolated and autocratic individual, but as that of a community-related and community-bound individual. This means that also in the community every single person generally needs to be recognized as an element with equal rights and a value of his own. Making the human being a mere object in the State is contrary to human dignity. The maxim “the human being must always be an end in itself” applies without limitation to all areas of law, also in the context of the armed forces. The dignity of the human being as a person, which cannot be lost, consists in its recognition, without exceptions, as a responsible personality …
In the present case, it need not be decided whether the ground rendering an order not binding according to Section 11, paragraph 1, sentence 3, half-sentence 1, alternative 1 of the Law on the Legal Status of Military Personnel (“human dignity”) also includes the protection of the freedom of conscience according to Article 4, paragraph 1 of the Basic Law. In any case, it does not reduce that protection.
220.127.116.11 According to the provision in Section 11, paragraph 1, sentence 3, half-sentence 1, alternative 2 of the Law on the Legal Status of Military Personnel non-compliance with an order is further not a case of disobedience, if the order was not given for service-related purposes. An order is only given for “service-related purposes” in this sense if it was required by the military service to fulfil the tasks of the Federal Armed Forces laid down in the Constitution … Against the two orders of 7 April 2003 here in question, the soldier can in any case invoke the protective effect of his basic right to freedom of conscience (Article 4, paragraph 1 of the Basic Law), which is superseded neither by the normal statutory law provision on the duty of obedience according to Section 11, paragraph 1, sentence 3, half-sentence 1, alternative 2 of the Law on the Legal Status of Military Personnel, nor by other constitutional law provisions … It is therefore here not necessary to further examine or decide whether the execution of the orders in view of the Iraq war commenced on 20 March 2003 would actually – as feared by the soldier – have partially served non service-related purposes as described above and whether they were non-binding already because of that.
18.104.22.168 In the present proceedings, the question of a violation of Section 11, paragraph 2, sentence 1 of the Law on the Legal Status of Military Personnel does not need to be further examined either. That provision regulates that orders are (also) not binding if by carrying them out a criminal act would be committed. This provision comprises all orders whose execution would fulfil the elements of a criminal offence under national criminal law … or would be an offence under international criminal law … This normal statutory law provision also does not supersede the constitutional law protection of the basic right to freedom of conscience (Article 4, paragraph 1 Basic Law), which the soldier can successfully invoke in the present case.
22.214.171.124 The provisions in Section 11, paragraph 1, sentence 3, half-sentence 1, alternatives 1 and 2 as well as paragraph 2, sentence 1 of the Law on the Legal Status of Military Personnel noted above do not exhaustively enumerate the grounds which render a military order not binding. This is generally accepted and corresponds to the established case-law of this Senate … Accordingly, Section 22, paragraph 1 of the Military Penal Code [Wehrstrafgesetz], which regulates the criminal law assessment of non-compliance with a non-binding order, provides that an order is not binding “in particular” if it was not given for service-related purposes, or if it violates human dignity, or if by carrying it out a criminal act would be committed. This statutory formulation (“in particular”) shows that the legislator has not exhaustively regulated the grounds rendering an order not binding in Section 11 of the Law on the Legal Status of Military Personnel. It is therefore uncontested in principle that orders are not binding whose execution is objectively impossible …, which are materially contradictory …, or which have become pointless due to a fundamental change of circumstances. There is no such case here.
126.96.36.199 Legally not binding, according to the constitutional law provision in Article 26, paragraph 1, sentence 1 of the Basic Law, is further an order whose issuing or execution is to be qualified as an act “tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression” … In the current case, the court need not decide [this], because here the soldier (already) due to the protective effect of his basic right to freedom of conscience (Article 4, paragraph 1 of the Basic Law) did not need to carry out the orders directed at him …
188.8.131.52 An order given to a subordinate is furthermore not binding if issuing or executing it violates the “general rules of international law”. Those are, according to Article 25 of the Basic Law, an “integral part of federal law” (sentence 1). They “shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory” (sentence 2). This precedence, compulsory as constitutional law, applies to the acts o
f all (German) public authority, in particular also those of the “executive power”. This requires in particular also the obligation of the executive power and the courts to omit everything that would give effect to acts of non-German authorities, undertaken in violation of the “general rules of international law”, in the area of application of the Basic Law, … and that they are barred from determinatively participating in an act of non-German authorities violating such rules … In the context of the Federal Armed Forces, in accordance with the precedence of Article 25, sentence 2 of the Basic Law, a superior’s military order which is contrary to the “general rules of international law” cannot demand obedience of a superior based on Section 11, paragraph 1, sentences 1 and 2 of the Law on the Legal Status of Military Personnel. The subordinate must therefore, if an order violates such “general rules of international law”, follow these rules instead of the order directed to him. Article 25 of the Basic Law insofar supersedes the legal effects of Section 11, paragraph 1, sentences 1 and 2 of the Law on the Legal Status of Military Personnel and directly obligates the subordinate …
The “general rules of international law” comprise, according to the established case-law of the Federal Constitutional Court, competent to bindingly determine them in cases of doubt based on Article 100 of the Basic Law, apart from those norms which have the quality of international law “ius cogens” (= indisposable, “compulsory” international law in the sense of Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969 …), customary international law as well as the general principles of law in the sense of Article 38, paragraph 1, letter c of the Statute of the International Court of Justice … Elements of “ius cogens” are, inter alia, the international law prohibition on the use of force, reflected in Article 1, no. 4 of the UN Charter, and the fundamental rules of the humanitarian international law of war … The existence of customary international law thereby requires a practice followed by a multitude of States representing all legal cultures worldwide (“general practice”), which is generally exercised with the conviction to be under an international law obligation to act that way (“opinio iuris”). To be taken into consideration when assessing norms of customary international law are, first of all, the acts, binding under international law, of those State authorities called upon to represent the State in international law relations by virtue of international or national law. Apart from that, however, such a practice can also show in the acts of other State organs, such as those of the legislator or the courts, at least insofar as their acts are directly relevant in international law, for example when serving to fulfil an international law obligation or to fill an international law margin of discretion …
In contrast, international treaty law regulations, i.e. international law treaties and agreements concluded by legal acts between subjects of international law, generally do not belong to the “general rules of international law” in the sense of Article 25 of the Basic Law, unless they were reflecting (in a declaratory way) legal norms of “ius cogens” or customary international law. This, of course, does not change that military orders – also below the threshold making them non-binding under Article 25, sentence 2 of the Basic Law – may only be given within the boundaries of Section 10, paragraph 4 of the Law on the Legal Status of Military Personnel, namely, inter alia, “only taking account the rules of international law”, i.e. the complete international law, including international treaty law.
Whether carrying out the two orders in question here actually would have causally generated – as the soldier thinks – a violation of the “general rules of international law”, does not need to be further examined and decided here, because the soldier could in any case invoke Article 4, paragraph 1 of the Basic Law [freedom of conscience] against the binding force of the orders claimed by his superior. Article 25 obviously did not run counter to that – at least in the case in question here.
184.108.40.206 Finally, a military order further is not binding on a subordinate, if, after weighing all the relevant circumstances, he cannot be reasonably expected to carry it out. This has, in principle, been for a long time accepted in case law and expert literature … The specific requirements, however, have so far not been sufficiently clarified … However, Article 1, paragraph 3 of the Basic Law as well as the drafting history and systematic context of Article 4, paragraph 1 of the Basic Law show that in any case a military order cannot be reasonably expected to be carried out if the subordinate in question can insofar invoke the protection of freedom of conscience …
4.1.3. Order and freedom of conscience (Article 4, paragraph 1 of the Basic Law)
220.127.116.11 Protective effect of Article 4, paragraph 1 of the Basic Law
18.104.22.168.1 Already the wording of the basic provision on the duty of obedience of a soldier in Section 11, paragraph 1, sentence 2 of the Law on the Legal Status of Military Personnel shows that a soldier has to carry out an order directed at him “conscientiously” (to the best of his abilities, completely and immediately). This formulation contains as an element of the term (“conscient-iously”) directly the link to the conscience (Lat. “conscientia”, Greek “syneidesis”), from which the adjectives “conscientious” and “conscienceless” are deduced …
Requested of the soldier is therefore not a “conscience-less”, but a “conscient-ious” execution of an order. This means that a soldier insofar has to act with all the diligence and responsibility possible to him and has to act accordingly. An “unconditioned” or “unconditional” obedience is not compatible with this normative imperative. Requested is rather a “thinking” obedience, an obedience “reflecting” the consequences of carrying out the order – especially also with regard to the limits of the applicable law and the ethical “yardsticks” of the personal conscience. In the present case it need not be further examined and decided under which concrete conditions compulsory imperatives of the personal conscience exceptionally justify or even command the refusal to carry out an order even when – like in the case of the attempted coup d’état of 20 July 1944 (“rise of the conscience”) – this implies violations of applicable laws. The Basic Law of the Federal Republic of Germany precisely provides for the possibility of a soldier invoking freedom of conscience (Article 4, paragraph 1 of the Basic Law). The issuing of a military order is subject to the corresponding proviso of its conformity with the Basic Rights.
IsraelIn the Ofer, Malinki and Others case in 1958, Israel’s District Military Court for the Central Judicial District stated:
The rule is that a soldier must obey every order (subject to the exception) given him by his commander while fulfilling his duty … The exception is that he need not execute an order that is manifestly illegal.
As to the term “manifestly illegal”, the Court went on to explain that:
The identifying mark of a “manifestly unlawful” order must wave like a black flag above the order given, as a warning saying: “forbidden”. It is not formal unlawfulness, hidden or half-hidden, not unlawfulness that is detectable only by legal experts, that is the important issue here, but an overt and salient violation of the law, a certain and obvious unlawfulness that stems from the order itself, the criminal character of the order itself or of the acts it demands to be committed, an unlawfulness that pierces the eye and agitates the heart, if the eye be not blind nor the heart closed or corrupt. That is the degree of “manifest” illegality required in order to annul the soldier’s duty to obey and render him criminally responsible for his actions.
The Military Court of Appeal adopted these words and added that the legislator’s solution to the problem of conflict between law and obedience is, as it were, a golden mean between giving complete preference to one of those factors over the other, because it recognized
the impossibility of reconciling these two values through purely formal law, and therefore foregoes the attempt to resolve the problem by these means alone; it bursts out of the confines, as it were, of the purely judicial categories, calling for help on the sense of lawfulness that lies deep within the conscience of every human being as such, even if he is not expert in the law.
ItalyIn its judgment in the Hass and Priebke case in 1997, Italy’s Military Tribunal of Rome stated that the duty to disobey an openly criminal order was independent from the fact that the subordinate could or could not prevent the event. The Tribunal further stated: “It is evident, indeed, that a member of the armed forces must not obey an unlawful order given to him even if he is aware that other persons may be willing to carry it out.”
In its relevant parts, this judgment was confirmed by the Military Appeals Court and the Supreme Court of Cassation.
NetherlandsIn its judgment in the Zuhlke case in 1948, the Special Court at Amsterdam stated with regard to the accused’s plea of superior orders:
The Court rejects this plea. Indeed … there was no need for him in the given circumstances to carry out such orders. An order to commit actions forbidden by international law may not be carried out, and a mistaken idea as to the validity or existence of such prohibitive provisions does not carry with it exclusion from penal liability. The detention in prison of persons who were incarcerated on the ground of their origin, or the ill-treatment and humiliation of prisoners, does not belong to the sphere of military subordination. The accused, who was not only a prison warder by occupation but had also been trained as a non-commissioned officer, must have known this.
PhilippinesIn its judgment in the Margen case in 1950, the Supreme Court of the Philippines held: “Obedience to an order of a superior gives rise to exemption from criminal liability only when the order is for some lawful purpose … [In this case] the order was illegal, and appellant was not bound to obey it.”
In its judgment in the Wijesuriya case in 1973, Sri Lanka’s Court of Criminal Appeal stated: “Section 100 of the Army Act requires a person subject to military law to obey only the lawful commands given by his superior officers. It is not applicable to a command which is obviously unlawful.”
United Kingdom of Great Britain and Northern Ireland
In 2006, in the Jones and others case, the UK House of Lords were called upon to decide whether the crime of aggression was part of the domestic criminal law of England and Wales. The appellants, charged with various criminal offences committed against UK military installations in 2003, contended that their acts were legally justified, for having been intended to prevent the crime of aggression in the form of the invasion of Iraq. The House unanimously dismissed their appeals. Lord Hoffmann noted, inter alia:83. The right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own person or property but simply wishes to see the law enforced in the interests of the community at large. The law will not tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act (compare R v Commissioner of Police of the Metropolis, Ex p Blackburn  2 QB 118) then he must use democratic methods to persuade the government or legislature to intervene.
84. Often the reason why the sovereign power will not intervene is because it takes the view that the threatened action is not a crime. In such a case too, the citizen is not entitled to take the law into his own hands. The rule of law requires that disputes over whether action is lawful should be resolved by the courts. If the citizen is dissatisfied with the law as laid down by the courts, he must campaign for Parliament to change it. …
86. My Lords, to legitimate the use of force in such cases would be to set a most dangerous precedent. As Lord Prosser said in Lord Advocate’s Reference No 1 of 2000 2001 JC 143, 160G-H:
“What one is apparently talking about are people who have come to the view that their own opinions should prevail over those of others … They might of course be persons of otherwise blameless character and of indubitable intelligence. But they might not. It is not only the good or the bright or the balanced who for one reason or another may feel unable to accept the ordinary role of a citizen in a democracy.”87. A time of war is the extreme example of the dangers. Of course citizens are entitled, indeed required, to refuse to participate in war crimes. But if they are allowed to use force against military installations simply to give effect to their own honestly held view of the legality of what the armed forces of the Crown are doing, the Statute of Treason would become a dead letter.
United States of AmericaIn the Calley case in 1973, the US Army Court of Military Appeals approved the following instructions given to the panel by the trial judge in a case where the accused invoked an order to kill unresisting detainees:
A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.
The Court cited a writer’s opinion to the effect that:
For the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness …
Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it can scarcely fail to be held justified by a military court. [emphasis in original]
In 1995, in the Huet-Vaughn case before the Court of Appeals for the Armed Forces, the US Government successfully appealed the decision of the Court of Military Review that had set aside the findings and the sentence imposed by a court martial that had found Huet-Vaughn (a medical officer in the US Army Reserve) guilty of desertion with intent to avoid hazardous duty and shirk important service. The Court of Appeals stated:To the extent that CPT Huet-Vaughn’s acts were a refusal to obey an order that she perceived to be unlawful, the proffered evidence was irrelevant. The so-called “Nuremberg defense” applies only to individual acts committed in wartime; it does not apply to the Government’s decision to wage war. See United States v. Berrigan, 283 F. Supp. 336, 341 (D.Md. 1969), aff’d sub nom. United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969), cert. denied, 397 U.S. 909 (1970). The duty to disobey an unlawful order applies only to “a positive act that constitutes a crime” that is “so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.” United States v. Calley, 22 U.S.C.M.A. 534, 543, 48 C.M.R. 19, 28 (1973), citing Lambert v. California, 355 U.S. 225, 228, 2 L. Ed. 2d 228, 78 S. Ct. 240 (1957), and W. Winthrop, Military Law and Precedents 296–97 (2d ed. 1920 Reprint). CPT Huet-Vaughn tendered no evidence that she was individually ordered to commit a “positive act” that would be a war crime.
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ArgentinaAccording to a statement by Argentina’s Chief of Staff of the Army in 1995, nobody is obliged to carry out an order which is unethical or which contravenes military laws and regulations.
AustraliaAt the CDDH, Australia stated that it “supported the objectives sought in the ICRC text of article 77 [of the draft Additional Protocol I]. Since the article should relate solely to grave breaches, paragraph 1 could be approved without reservation.”
In 2006, in its second periodic report to the Committee against Torture, Belgium stated:As far as the military forces are concerned, article 11 of the Armed Forces (Disciplinary Regulations) Act of 14 January 1975 states that “An order may not however be implemented if implementation may manifestly involve the perpetration of a crime or an offence”. That principle was reaffirmed in the new regulations on internal discipline, Ed 01, 23 August 2005.
In 2010, within the context of a Training Workshop on Military Criminal Law for Military Judges, Burundi’s Ministry of National Defence and Former Combatants stated:The CPM [Military Penal Code (1980)] seems to establish the principle of the absolute, mechanical and blind obedience, as if the servicemen should execute the orders received without any discernment, even when the orders were manifestly unlawful. Despite the lack of provision in the CPM attenuating the principle of obedience, there is an exception: “A manifestly unlawful order shall not be executed”.
Indeed, the servicemen shall obey the orders from their superiors but they are responsible for the execution of the missions which are assigned to them. Only the illegality of the order received might allow the subordinate not to execute it. However, if the motivation of illegality is improperly invoked with the aim of evading the execution of an order, the subordinate is subject to criminal and disciplinary penalties for refusal to obey. Thus, manifestly unlawful orders cannot be given to subordinates and the latters may not execute acts which are against the law, the customs of war and international conventions, and which constitute crimes or offences.
ChileAccording to the Report on the Practice of Chile, “Chile adheres to the principle of reasoned obedience”.
CubaThe Report on the Practice of Cuba states:
In practice, there is no record of military personnel giving orders violating international humanitarian law, but in accordance with the interpretation of [Article 25(3) of the Penal Code providing for mitigation in case of excessive order], obeying an illegal order is comparable with excessive requirement to obey, and the possibility of not obeying can therefore be envisaged.
EgyptThe Report on the Practice of Egypt, referring to an explanatory memorandum relative to Article 15 of Egypt’s Military Criminal Code, which provides for the punishment of not executing legal orders, notes “the fact that the order of a superior should be a ‘legal one’”. The report further states: “Clearly, this may open the door for a defence of non-execution of an order to commit a violation of IHL.”
In 2007, in reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Description of the generals of the Federal Armed Forces as opportunistic, cowardly and unscrupulous”, Germany’s Federal Government wrote:The Federal Government shares the view of the Federal Administrative Court … that the central obligation of every soldier of the Federal Armed Forces to carry out orders conscientiously does not demand unconditional obedience, but an obedience which is thinking and which, in particular, takes into consideration the consequences of carrying out the order. Refusals to obey orders merely because of differing personal views, however, are not permissible. The limits of permissible fulfilment of orders are set by Section 11, paragraph 1, sentence 3, and paragraph 2 of the Law on the Legal Status of Military Personnel [Soldatengesetz]. There can therefore be no unconditional authority of and loyalty to superiors.
IndiaThe Report on the Practice of India, referring to provisions of the Army Act, Coast Guard Act and Indo-Tibetan Boarder Police Force Act, states that it is “possible to deduce from these provisions a right to disobey unlawful orders given by superior officials/authorities because the relevant provisions very clearly provide that a person is not supposed to wilfully defy ‘lawful’ orders or commands given by the superiors”.
IsraelAt the CDDH, Israel stated that it had voted in favour of Article 77 of the draft Additional Protocol I and that:
The article is a reflection of existing customary international law clearly enunciated in the Nürnberg principles and embodied in [Israeli law].
We regret that Article 77 was not adopted … and wish to state that the rule [initially providing, inter alia, that “no person shall be punished for refusing to obey an order of his government or of a superior which, if carried out, would constitute a grave breach of the provisions of the Conventions or of the present Protocol”] continues to be governed by customary international law.
The Report on the Practice of Israel states:
Under general Israeli law and IDF [Israeli Defense Forces] internal regulations, there exists a differentiation between an “unlawful order” and a “manifestly unlawful order”. Based on the understanding that clarity of command is a required element in any military organization, all IDF soldiers are required to comply with “unlawful orders” … As regards “manifestly unlawful orders” … IDF soldiers are required by law to refuse any such order.
ItalyOn the basis of the decisions of the Military Tribunal of Rome in the Priebke case and in the Hass and Priebke case, the Report on the Practice of Italy concludes that “the opinio juris of Italy is that a soldier has the duty to disobey an order to commit a violation of international humanitarian law”.
JordanAccording to the Report on the Practice of Jordan, Article 17 of the Military Criminal Code of Jordan, which provides for the imposition of a penalty upon a subordinate who disobeys a lawful order, “means that if a subordinate knows that the order given by a superior would result in a breach of the law he must disobey it”.
KuwaitIn an article published in a military review, a member of the Kuwaiti armed forces stated:
If a soldier receives an illegal order, he should draw the attention of his commander to the illegality of the same. If the commander insists on his opinion, the soldier should abide by the order and implement it, unless the illegality is clear, and the order forms a crime, e.g. if the military commander orders to forge papers, embezzle funds, murder a human being or torture him. Here the duty of obedience is turned into the duty of refusal.
According to the Report on the Practice of Kuwait, under Kuwait’s military laws, soldiers take the oath to obey rightful orders.
PakistanThe Report on the Practice of Pakistan states:
Although the text of the oath [for soldiers] merely refers to obedience to “all commands”, still it is to be understood that the text of the oath … cannot be read beyond the provisions of [section 33 of the Army Act (1952) which provides that a soldier is liable to punishment if he disobeys a “lawful command”]. It is to be noted that although there is no provision explicitly stating that unlawful command should be disobeyed, still the section 33 can be interpreted to mean that there will be no punishment under the Army Act if the soldier has disobeyed the command which is illegal … Thus the opinio juris and the practice in Pakistan is that unlawful command can be refused.
PhilippinesThe Report on the Practice of the Philippines, referring to a provision of the Revised Penal Code which provides that “any person who acts in obedience to an order issued by a superior for some lawful purpose” does not incur any criminal liability, states: “However, if the order is obviously illegal, the person has the duty to disobey it.”
Russian FederationThe Report on the Practice of the Russian Federation states: “No document of the CIS [Commonwealth of Independent States] countries [contains] a provision that a superior’s order can be omitted if it would mean a violation of the rules of IHL.” However, the report also notes: “The right of a subordinate to disobey a superior’s order violating the rules of IHL can be inferred from the provision that a violation of the rules of IHL is considered to be a war crime and is prosecuted as a penal offence.”
SpainThe Report on the Practice of Spain states:
Since the subordinate is not protected [from penal responsibility under the Military Criminal Code] by the defence of hierarchical obedience, he is bound to disobey any order manifestly contrary to the laws and customs of war, a phrase that covers breaches of international humanitarian law.
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional Protocols, Spain stated:The framework guaranteeing that members of the armed forces will conduct themselves in accordance with international humanitarian law is constituted by … article 48 of Title II on Discipline [of the Royal Ordinances for the Armed Forces (2009)] [which] provides that “if orders involve carrying out criminal acts, especially crimes against the Constitution and against protected persons and property in armed conflict, members of the armed forces shall be under no obligation to obey them”.
United States of AmericaAccording to the Report on US Practice, it is the opinio juris of the United States that the law of war obliges all persons not to commit war crimes. The duty to obey the law of war prevails over the duty to obey a manifestly unlawful order.
UruguayDuring a debate in Committee I of the CDDH, Uruguay, although criticising Article 77 of the draft Additional Protocol I submitted by the ICRC, stated that it “supported the principles underlying Article 77, which undoubtedly had its place in the section of draft Protocol I dealing with the repression of breaches”.
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UN General Assembly
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:Stresses that States must not punish personnel [who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment] … for not obeying orders to commit or conceal acts amounting to torture or other cruel, inhuman or degrading treatment or punishment.
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:Stresses that States must not punish personnel who are involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment for not obeying orders to commit or conceal acts amounting to torture or other cruel, inhuman or degrading treatment or punishment.
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:Stresses that States must not punish personnel who are involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment or any other form of deprivation of liberty for not obeying orders to commit or conceal acts amounting to torture or other cruel, inhuman or degrading treatment or punishment.
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:Stresses that States must not punish personnel who are involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment or any other form of deprivation of liberty for not obeying orders to commit or conceal acts amounting to torture or other cruel, inhuman or degrading treatment or punishment.
UN Commission on Human Rights
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights stressed that States “must not punish personnel for not obeying orders to commit acts amounting to torture or other cruel, inhuman or degrading treatment or punishment”. In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights stressed that States “must not punish personnel for not obeying orders to commit acts amounting to torture or other cruel, inhuman or degrading treatment or punishment”. In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN Commission on Human Rights stressed that States “must not punish personnel for not obeying orders to commit acts amounting to torture or other cruel, inhuman or degrading treatment or punishment”.
UN Commission on Human Rights (Special Rapporteur)In 1997, in the recommendations of his second report on the situation of human rights in Burundi, the Special Rapporteur of the UN Commission on Human Rights stated: “The members of the armed forces should know that they have the right to refuse to carry out orders that will result in slaughter.”
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Sudan People’s Liberation Movement (SPLM)The SPLM Human Rights Charter provides: “All persons have the right and duty to refuse to carry out orders that would involve them abusing the above principles, without fear of punishment.”
Sudan People’s Liberation Movement/Army (SPLM/A)The Penal and Disciplinary Laws of the SPLM/A state:
The following offences shall be punishable under this Law and shall pertain only to members of the Sudan People’s Liberation Army and its affiliated organizations.
d) Disobedience of Lawful Orders from a Superior.