Practice Relating to Rule 154. Obedience to Superior Orders
Germany’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)”.
Germany’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.”
In 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 220.127.116.11 to 18.104.22.168). 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).
22.214.171.124 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.
126.96.36.199 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.
188.8.131.52 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.
184.108.40.206 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.
220.127.116.11 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 …
18.104.22.168 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 of 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.
22.214.171.124 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)
126.96.36.199 Protective effect of Article 4, paragraph 1 of the Basic Law
188.8.131.52.1 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.
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.