Practice Relating to Rule 154. Obedience to Superior Orders

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. 

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. 

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. 

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. 

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.

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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.

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:

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. 

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. 

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. 

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. 

Article 22

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Member of the Armed Forces must:

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Article 24

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3. Commanders have the right and duty to demand absolute obedience from their subordinates. They must not, however, order their subordinates to carry out acts for which they could be held criminally liable.

Such acts include the following:

Article 25

1. … The primary duty of subordinates is to loyally obey all the orders they receive. …

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2. As commanders are responsible for the orders they give, subordinates may only object after they have obeyed the order, except when the order given is plainly unlawful or requires the commission of an illegal act.

Subordinates who believe that they have been given an unlawful order have a duty to make their objections known to the superior who gave it, expressly stating what they have understood to be illegal about the disputed order and hearing all relevant explanations and necessary interpretations given by the superior.

The refusal to obey an unlawful order must be clear, with the individual assuming all responsibilities. However, if the illegality of the order is not proved, the soldier who refused to execute it shall be at fault and subject to criminal or disciplinary sanctions for refusing to obey orders.

If it is proved that a subordinate was compelled by force or physical threats to carry out an unlawful order, he or she shall only be held partially responsible. 

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. 

According to German law an order is not binding if:

Orders which are not binding need not be executed by the soldier. 

Article 1: It is important that superiors obtain from their subordinates obedience and subservience at all times, as discipline is the main strength of armed forces.

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Article 10: Duties and responsibilities of subordinates

The primary duty of subordinates is to obey orders. The authority vested in a commander is conferred upon him by law. The obedience by his subordinates due to a superior vested with authority is simply compliance with the law, which is an expression of the national will.

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However, any person carrying out an order which requires the performance of a flagrantly illegal act, an act which involves notably an offence against the life, integrity or the freedom of persons or the right to property, fully engages his disciplinary and criminal responsibility.

That latter responsibility is assessed in accordance with the rules of criminal law. Especially, the grounds for absence of responsibility, such as coercion, can exonerate a subordinate from any responsibility.

A subordinate who refuses to carry out an order whose unlawful nature is not proven is guilty. He shall incur a sanction independently from any potential proceedings against him for refusing to obey orders. 

[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. 

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. 

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. 

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 charges, simply because an unclear order was not clarified or questioned. 

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. 

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. 

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- When issuing orders to subordinates, commanders must ensure that:

6 Subordinates do not carry out an order if they know that it is punishable according to national or international law. In case of doubt, they ask their superior for further information.

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245 … [Subordinates] do not execute any order of which they know that it violates the law of armed conflict. If in doubt, they request further information from their superiors.  [emphasis in original]

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]

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 or 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]

(1) A defence member is guilty of an offence if:

Maximum punishment: Imprisonment for 2 years. 

(1) Any person subject to this Act who disobeys[,] in such a manner as to show a wilful defiance of authority[,] a lawful command given personally by his superior officer, knowing or having reason to believe him to be such, shall, on conviction by court martial, be punished with rigorous imprisonment for a term which may extend to fourteen years, or with such less punishment as is in this Act mentioned.

(2) Any person subject to this Act who disobeys the lawful command of his superior officer, knowing or having reason to believe him to be such, shall, on conviction by court martial, if he commits such offence on active service, be punished with rigorous imprisonment for a term which may extend to fourteen years, or with such less punishment as is in this Act mentioned. 

(1) Any person subject to this Act who disobeys[,] in such manner as to show a wilful defiance of authority[,] any lawful command given personally by his superior officer in the execution of his office whether the same is given orally or in writing or by signal or otherwise shall, on conviction by court-martial, be liable to suffer long imprisonment.

(2) Any person subject to this Act, who disobeys any lawful command given by his superior officer shall, on conviction by court-martial, if he commits such offence when on active service, be liable to suffer long imprisonment. 

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. 

(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. 

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. 

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. 

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. 

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. 

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. 

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. 

Any serviceman or affiliated personnel who refuses to obey an order or who, except in the case of force majeure, does not carry out a received order, shall be punished with one (01) to two (02) years’ imprisonment.

The sentence can be increased by one (01) to three (03) years if the acts were committed during an armed conflict in besieged territory or in territory in which there is a state of emergency, or on board of a ship or aircraft. 

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]. 

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. 

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]. 

(1) A person subject to service law under this Act who, in such manner as to show wilful defiance of authority, disobeys a lawful command given or sent to him by whatever means is guilty of an offence under this subsection and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(2) A person subject to service law under this Act who, whether wilfully or through neglect, disobeys a lawful command is guilty of an offence under this subsection and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act. 

The following shall be exempt from criminal responsibility and sanctions:

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. 

In cases concerning crimes against International Humanitarian Law, the punishment shall be lessened for individuals who carried out an order by a government, authority or superior, whether civilian or military, as long as:

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. 

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.

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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. 

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. 

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I swear by the name of Allah:

2. From that day onwards, the person is bound to effectively fulfil this pledge. Any instances of failing to keep this pledge are considered as dishonest … and the person shall be liable for punishment.

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12. Obedience shall be based on swiftness, respect and must not be half-hearted. [A] [s]oldier shall not hesitate or show half-heartedness or [make] comments, even if he feels that he is right, [that the] given order is wrong or that he has been punished unjustly. However, the soldier is allowed to submit a complaint in accordance [with] the complaint procedures. But the complaint shall be made only after the soldier [carries out] completely the given order. 

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. 

4. …

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(3) Despite any other law to the contrary, including customary international law, the fact that an accused person –

is neither a defence to a charge of committing an offence referred to in this section, nor a ground for any possible reduction of sentence, once that person has been convicted of such offence.

(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, threat of war, internal political instability, national security or any state of emergency may be invoked as a justification for torture.

(5) No one shall be punished for disobeying an order to commit torture. 

1. This law applies to all members of the Armed Forces who acquire the status of military personnel in accordance with Law 39/2007, of 19 November, on Military Career. Accordingly, it applies to official members of the armed forces, except for those persons in administrative roles whose status as military personnel is suspended and students undergoing military training.

2. This status applies to members of the reserves and aspirants when they are incorporated into the armed forces …

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1. The essential rules governing the conduct of military personnel are the following:

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Discipline, a factor of cohesion that imposes an obligation to give orders responsibly and to obey orders, will be practiced and required in the armed forces as a norm of conduct. It finds its collective expression in the observance of the constitution and its individual expression in obedience to orders received.

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Responsibility in the exercise of military command cannot be renounced or shared. … All commanders have the duty to demand obedience from their subordinates and the right for their authority to be respected, but cannot order acts contrary to law or which constitute a crime.

To obey orders that, in accordance with the law, are related to service given by military personnel to a subordinate in an appropriate form and within their power, to carry out or omit to carry out a concrete action. Further, to fulfil the requests received from military personnel of higher rank with regard to the general norms and provisions of order and conduct.

If the orders entail the carrying out of acts constituting a crime, in particular against the Constitution or against persons or objects protected in armed conflict, military personnel are not obliged to obey and must inform the immediate superior commander of the person who gave the order to carry out the act, as fast and efficiently as possible. In any case military personnel shall assume the serious responsibility following from their acts or omissions. 

Penalties shall not apply to:

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. 

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. 

Any member who

shall be guilty of an offence. 

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. 

The Supreme Court of the Republic of Croatia, as the second instance court, concludes that the actions of the accused … satisfy all elements of the criminal offence of war crimes against civilians in violation of Article 120(1) of the BCCRC [Basic Criminal Code if the Republic of Croatia]. 

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:

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:

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:

Whereas, therefore, the criminal responsibility of the defendant Blaise Bongi Massaba can in no case be lifted. 

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.

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[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. 

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 4.1.2.1 to 4.1.2.7). 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).

4.1.2.1 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.

4.1.2.2 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.

4.1.2.3 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.

4.1.2.4 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.

4.1.2.5 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 …

4.1.2.6 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.

4.1.2.7 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 …

…

…

4.1.3.1.1 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. 

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.

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 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. 

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. 

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 [1968] 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:

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. 

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. 

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]

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

45. … Regarding respect of administrative hierarchy, article 48, paragraph 2, of the Constitution, provides that any 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 freedom.  [footnote in original omitted]

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. 

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”. 

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. 

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. 

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. 

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. 

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.