The Duty to Disobey Unlawful Orders
After the horrific consequences of two world wars the Nuremburg and Tokyo War Crimes Trials made it clear that every citizen and in particular every soldier has a legal duty to humanity to prevent governments from waging aggressive war and causing injury or death to innocent people.
The very essence of the [London] Charter is that individuals have international duties, which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State, if the State in authorising action moves outside its competence under international law.
That a soldier was ordered to kill or torture in violation of the international law of war has never been recognised as a defence to such acts of brutality, though, as the Charter here provides, the order may be urged in mitigation of the punishment. The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.
Nuremburg War Crimes Tribunal 1946
That these international duties apply to every member of HM Armed Forces was confirmed with the publication of The Manual of Military Law in 1955 which states:
If a person, who is bound to obey a duly constituted superior, receives from the superior an order to do some act or make some omission which is manifestly illegal, he is under a legal duty to refuse to carry out the order and if he does carry it out he will be criminally responsible for what he does in doing so.
Manual of Military Law, Pt I, Chapter VI, Article 24
Article 24 of the Manual of Military Law makes it quite clear that members of the armed forces have a lawful duty to disobey orders from their superior officers if they believe that those orders are unlawful. It also makes it quite clear that if they do carry out an unlawful order they will be held criminally responsible for the consequences of the order.
The publication of the Manual of the Law of Armed Conflict by the Ministry of Defence in 2004 reconfirmed the principle and made it quite clear that the duty to disobey a manifestly unlawful order applies to all superior orders from wherever they originate.
16.47.3 Orders from a superior in this context include those of a government, a superior - military or civilian - or a national law or regulation. A serviceman is under a duty not to obey a manifestly unlawful order.
Manual of the Law of Armed Conflict, Chapter 16, Article 47
That a soldier can be held criminally responsible for his actions when following unlawful orders was confirmed after the Vietnam war when the US Court of Military Appeals rejected the plea of superior orders and confirmed the guilty verdict on Lt William Calley for his part in the My Lai massacre.
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 acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.
Whether Lieutenant Calley was the most ignorant person in the United States Army in Vietnam, or the most intelligent, he must be presumed to know that he could not kill the people involved here An order to kill infants and unarmed civilians who were so demonstrably incapable of resistance to the armed might of a military force as were those killed by Lieutenant Calley is, in my opinion, so palpably illegal that whatever conceptual difference there may be between a person of "commonest understanding" and a person of "common understanding," that difference could not have had any "impact on a court of lay members receiving the respective wordings in instructions," as appellate defense counsel contend.
United States Court of Military Appeals, December 21, 1973
Identifying a manifestly unlawful order
When receiving an order from an officer, a soldier, as a reasoning agent, is obliged to respond not as a machine but as a person, as a human being. This means that instead of automatically responding to orders without thinking he must stop and think and use his reasoning ability to deliberate on the issue and decide for himself whether or not the order is lawful. In making high quality choices or decisions a soldier needs to undertake several distinct thought processes.
In the first place he needs to consider what an order entails, the actions and activities that he will be involved in.Then he needs to consider the likely or expected outcome, the results or consequences of the order.Then he needs to examine his conscience and establish whether or not the action he is being asked to take or the consequence he is being asked to bring about is right or wrong and complies with his own moral values and standards.If it does, he then needs to consider whether or not the order and its likely consequences complies with his own understanding of the law and whether it is or is not a criminal offence.If after thinking it through he is happy that his conscience is clear and that the consequences of his actions will be lawful then he has a duty to follow the order.If however his thought processes have thrown up moral or legal questions or concerns then he is obliged in law to raise his questions and concerns with his ‘superior’ officers.
If a soldier believes that by following an order he will transgress his own moral code of conduct or international or domestic law then he has a lawful duty to disobey the order.
What is an unlawful order ?
An unlawful order is:
Any order which if followed will cause physical injury, mental harm or death.Any order which if followed will break the law.Any order which if followed will lead to the commission of a criminal offence.Any order to take part in an unlawful activity.
Examples of manifestly unlawful orders
Any political, civil or military order to
Use high-explosive weapons against inhabited villages, towns and cities.Take any action that could cause injury or death to children or unarmed civilians.Take part in a war of aggression.Use armed force other than in defence of the nation.Take part in an armed attack in foreign territory.Take part in the invasion or occupation of an independent sovereign nation state.Kill an enemy combatant.Take any action that could result in the destruction of others’ property.Drop bombs or fire rockets or cruise missiles at enemy positions.Prepare or train to use nuclear weapons.
A Soldier’s Duty to Disobey Unlawful Orders
Ever since the end of the Second World War every citizen and every member of a military force has had an international legal duty to disobey superior orders when the orders they receive from their government or their political, civil and military leaders and officers are obviously unlawful. Unfortunately neither the British Government nor HM Armed Forces have made any efforts to help soldiers, sailors and airmen to decide for themselves when an order is unlawful. On the contrary, members of the armed forces are taught to follow orders without questioning them and in many cases they are punished if they dare to question an order. As a result ordinary human beings become brutalized to such an extent that they accept without question that killing men, women and even children in their thousands is all part of the job. This has to change. All of us have a duty to mankind to take a stand and force our leaders and governments to stop the killing and adopt a peaceful approach to the resolution of difficulties.