994 pp

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.

Inter-American Convention on the Forced Disappearance of Persons, adopted by the Twenty-fourth Regular Session
of the OAS General Assembly, Res. 1256 (XXIV-O/94), Belém do Pará, 9 June 1994, Articles VIII and XV.

.154 ‫ القاعدة‬Practice relating to II. Other Instruments

Obedience to Superior Orders Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
I. Treaties Summary Executions

Additional Protocol I (draft) Paragraph 3 of the 1989 Principles on the Effective Prevention and Investigation of Extra-
Legal, Arbitrary and Summary Executions provides:
Article 77(1) of the draft Additional Protocol I submitted by the ICRC to the CDDH provided:
Governments shall prohibit orders from superior officers or public authorities authorizing
“No person shall be punished for refusing to obey an order of his government or of a superior
or inciting other persons to carry out any such extralegal, arbitrary or summary
which, if carried out, would constitute a grave breach of the provisions of the Conventions or
executions. All persons shall have the right and the duty to defy such orders. Training of
of the present Protocol.”
law enforcement officials shall emphasize the above provisions.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions,
International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 77(1). CDDH, Official Records, Vol. I, Part
recommended by the UN Economic and Social Council, Res. 1989/65, 24 May 1989, § 3.
Three, Draft Additional Protocols, June 1973, p. 25.

This proposal was subject to amendments and referred to Working Group A of Committee I Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
where it was adopted by 38 votes in favour, 22 against and 15 abstentions.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
Paragraph 25 of the 1990 Basic Principles on the Use of Force and Firearms by Law
International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 77(1). CDDH, Official Records, Vol. X, Enforcement Officials provides:
CDDH/234/Rev.1, 21 April–11 June 1976, p. 120, §§ 26–27; Official Records, Vol. X, CDDH/405/Rev. 1, 17 March–10
Governments and law enforcement agencies shall ensure that no criminal or disciplinary
June 1977, p. 188, § 38, and p. 262; Official Records, Vol. IX, CDDH/I/SR.65, 9 June 1976, p. 332, § 30.
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
The approved text provided: “The High Contracting Parties undertake to ensure that their
order to use force and firearms, or who report such use by other officials.
internal law penalizing disobedience to orders shall not apply to orders that would constitute
grave breaches of the Conventions and this Protocol.” Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of 1990, UN Doc. A/CONF.144/28/Rev.1, 1990, p. 112, § 25.
International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 77(1). CDDH, Official Records, Vol. X,
CDDH/405/Rev. 1, 17 March–10 June 1977, p. 262.

UN Declaration on Enforced Disappearance

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). Article 6(1) of the 1992 UN Declaration on Enforced Disappearance provides:
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of No order or instruction from any public authority, civilian, military or other, may be
International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 77(1). CDDH, Official Records, Vol. VI,
invoked to justify an enforced disappearance. Any person receiving such an order or
CDDH/SR.45, 30 May 1977, p. 308.
instruction shall have the right and duty not to obey it.

Inter-American Convention on the Forced Disappearance of Persons

Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly,
Res. 47/133, 18 December 1992, Article 6(1).

Article VIII of the 1994 Inter-American Convention on the Forced Disappearance of Persons
III. Military Manuals
Cameroon’s Disciplinary Regulations (1975) provides: “Obedience is the first duty of the
Australia subordinate and he shall loyally execute the orders he receives.”

Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 19.
Australia’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 However, the manual also states:
of armed conflict].”
The subordinate [is released from] his penal responsibility when he obeys orders of his
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – superior …
Interim Edition, 1994, § 1306; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force
If the order is manifestly illegal or stipulates the commission of an illegal act [in the
Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1207.
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
Australia subordinate engages his penal responsibility …
The subordinate who believes he is being confronted with an illegal order has the duty to
Australia’s LOAC Manual (2006) states: “If an order is ambiguous, clarification should be communicate his objections to the authority which gives them … If the order is
sought. If clarification is unavailable, any action taken must comply with LOAC.” maintained … concerning acts contrary to the laws and customs of war, the subordinate
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence has the absolute right not to execute the order.
Headquarters, 11 May 2006, § 13.7.
Cameroon, Règlement de discipline dans les Forces Armées, Décret No. 75/700, 6 November 1975, Article 21.

The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the
Commanders’ Guide (1994). Cameroon

Belgium Cameroon’s Instructor’s Manual (1992) provides: “It is forbidden for a soldier to obey orders
constituting a crime.”
Belgium’s Disciplinary Regulations (1991) provides: “Soldiers must loyally execute … orders
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces
given by their superiors in the interest of the service”. Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition
1992, p. 26, § 121(3).
Belgium, Règlement de Discipline pour l’Armée, Etat-Major Général, Division Personnel, 18 November 1991, § 304(a);
see also § 403(d).

Cameroon
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.”
Cameroon’s Instructor’s Manual (2006) states: “It is prohibited for soldiers to obey
Belgium, Règlement de Discipline pour l’Armée, Etat-Major Général, Division Personnel, 18 November 1991, § 304(b). criminally unlawful orders.”

Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les
forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 100, § 316;
Burkina Faso
see also p. 142, § 421.

Burkina 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 Cameroon
order received. He is liable to penal and/or disciplinary sanctions for refusing to obey when he
wrongly invokes a motive of any sort.” Cameroon’s Disciplinary Regulations (2007) states:
Article 19: Obedience

Since any commander derives from the law the authority which is vested in him, the
Burkina Faso, Règlement de Discipline Générale dans les Forces Armées, Décret No. 94-159/IPRES/DEF, Ministère de obedience which is due to him by his subordinates is nothing but an act of submission to
la Défense, 1994, Article 20(3) and (4). the law, the expression of the national will.
Obedience is thus the first duty of the subordinate and he shall loyally execute the orders
Cameroon
he receives
 he receives.
… The Code of Conduct further states:

Article 20: Personal responsibility 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
The subordinate is responsible for the execution of orders or of the consequences of their
manifestly unlawful order regardless of rank or position. A manifestly unlawful order is
non-execution. That responsibility excludes passive obedience.
one which shocks the conscience of every reasonable, right-thinking person. For
He must embrace not only the letter but also the spirit of the orders received.
example, mistreating someone who has surrendered or beating a detainee is manifestly
The commander being responsible for the orders he gives, reclamation is not permitted to unlawful.
the subordinate but when he has obeyed, except where the provisions of Article 21 below
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, § 5.
are concerned.
Article 21: Penal responsibility
Canada
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. Rule 11 of Canada’s Code of Conduct (2005) instructs soldiers:
If the order is manifestly illegal or stipulates the commission of an illegal act, in the 4. Orders must be followed. Military effectiveness depends on the prompt obedience to
meaning of Article 17 of the present Regulations, the subordinate engages his penal orders. Virtually all orders you will receive from your superiors will be lawful,
responsibility, according to the provisions of Articles 82-b and 83-2 of the Penal Code. straightforward and require little clarification. What happens, however, if you receive an
The subordinate who believes he is being presented with an illegal order has the duty to order that you believe to be questionable? Your first step of course must be to seek
communicate his objections to the authority which has given them; he expressly indicates clarification. Then, if after doing so the order still appears to be questionable, in
the illegal signification he gives to the disputed order. He receives any useful explication accordance with military custom you should still obey and execute the order – unless –
and necessary interpretation from his commander. the order is manifestly unlawful.
If the order is maintained: 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
- concerning acts contrary to the laws and customs of war, the subordinate has the
example, mistreating someone who has surrendered or beating a detainee is manifestly
absolute right not to execute the order.
unlawful.
In case of error, the subordinate cannot be exonerated of the sanctions which are implied
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 11, §§ 4–5.
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.
Central African Republic

Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la
The Central African Republic’s Disciplinary Regulations (2009) states: “The subordinate
République, 7 July 2007, Articles 19–21.
refusing to execute an order whose unlawful nature has not been demonstrated is at fault.”

Canada Central African Republic, Décret 09.411 portant règlement de discipline générale dans les Armées, Ministre de la
Défense Nationale, des Anciens Combattants, des Victimes de Guerre, du Désarmement et de la Restructuration de
l’Armée, 10 December 2009, Article 11(3).
Canada’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, Congo
straightforward and require little clarification. What happens, however, if you receive an
The Congo’s Disciplinary Regulations (1986) provides: “Obedience is the first duty of the
order that you believe to be questionable? Your first step of course must be to seek subordinate. He loyally executes orders he receives.” However, it adds: “The subordinate must
clarification. Then, if after doing so the order still appears to be questionable, in not execute an order to commit an act manifestly … contrary to the customs of war and to the
accordance with military custom you should still obey and execute the order – unless – international conventions.”
the order is manifestly unlawful.
Congo, Décret No. 86/057 du 14 janvier 1986 portant Règlement du Service dans l’Armée Populaire Nationale, 1986,
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 11, § 4. Article 21.
 responsible for promptly obeying all legal orders issued by your leader … you are obligated to
Djibouti
disobey an order to commit a crime”.

Djibouti’s Disciplinary Regulations (1982) states: Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF. AA. “General
de Brigada Pablo Duarte”, Secretaría de Estado de las Fuerzas Armadas, May 1980, p. 12.
Article 22
…
El Salvador
Member of the Armed Forces must:

– strictly observe the discipline and the rules El 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.”
Article 24
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional,
… Departamento de Derecho Humanitario, undated, p. 11.

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 France
which they could be held criminally liable.
Such acts include the following: France’s Disciplinary Regulations (1975), as amended, states that members of the military
“have the duty to obey lawful orders”.
– acts contrary to the laws and customs of war … ;
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree No.
… 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10 December
1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre, Bureau Emploi,
Article 6.
Article 25
1. … The primary duty of subordinates is to loyally obey all the orders they receive. …
The Regulations further provides:
…
The subordinate shall not carry out an order to do something that is manifestly unlawful
2. As commanders are responsible for the orders they give, subordinates may only object or contrary to the customs of war, the rules of international law applicable in armed
after they have obeyed the order, except when the order given is plainly unlawful or conflicts, or duly ratified or approved international treaties.
requires the commission of an illegal act.
France, Règlement de Discipline Générale dans les Armées, Decree No. 75-675 of 28 July 1975, replacing Decree
Subordinates who believe that they have been given an unlawful order have a duty to make No. 66-749, completed by Decree of 11 October 1978, implemented by Instruction No. 52000/DEF/C/5 of 10
their objections known to the superior who gave it, expressly stating what they have December 1979, and modified by Decree of 12 July 1982, Ministère de la Défense, Etat-Major de l’Armée de Terre,
Bureau Emploi, Article 8(3).
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 Germany
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 Germany’s Military Manual (1992) provides:
refusing to obey orders.

According to German law an order is not binding if:

If it is proved that a subordinate was compelled by force or physical threats to carry out an
–it violates the human dignity of the third party concerned or the recipient of the
unlawful order, he or she shall only be held partially responsible.
order;
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces
armées, Articles 22 and 24–25. –it is not of any use for service; or

Dominican Republic –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 Dominican Republic’s Military Manual (1980) tells soldiers that although “you are
ibl f tl b i ll l l d i db l d bli t dt Germany Humanitarian Law in Armed Conflicts Manual DSK VV207320067 edited by The Federal Ministry of
 Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military
Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres
Law, Second Edition, 2006, p. 46.
Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 142.

The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of
The manual further states that “moreover, it is expressly prohibited to obey orders whose
War (1998).
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)”.
Italy
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of
Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres
Italy’s IHL Manual (1991) states:
Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, §§ 143 and 145.
Concerning the norm and the consequent disciplinary rule, “the soldier who is requested
Guinea 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
Guinea’s Disciplinary Regulations (2012) states: order and inform his superiors as soon as possible.

Article 1: It is important that superiors obtain from their subordinates obedience and Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato
subservience at all times, as discipline is the main strength of armed forces. Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 83.

…
Article 10: Duties and responsibilities of subordinates Netherlands
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 According to the Military Handbook (1995) of the Netherlands, an order issued in time of war
with authority is simply compliance with the law, which is an expression of the national that would lead to a war crime if complied with should be refused. It explains that soldiers
will. 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.
…
However, any person carrying out an order which requires the performance of a flagrantly Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-45.

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
Netherlands
responsibility.
That latter responsibility is assessed in accordance with the rules of criminal law. The Military Manual (2005) of the Netherlands states that “compliance [with the
Especially, the grounds for absence of responsibility, such as coercion, can exonerate a humanitarian law of war] should take place at all times. No one may be ordered to break these
subordinate from any responsibility. rules. Such an order is unlawful and must not be obeyed.”
A subordinate who refuses to carry out an order whose unlawful nature is not proven is
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair
guilty. He shall incur a sanction independently from any potential proceedings against Juridische Dienst, 2005, § 1074.
him for refusing to obey orders.

New Zealand
Guinea, Règlement de Service dans les Forces Armées, Volume 1: Règlement de Discipline Générale (Service
Regulations in the Armed Forces, Volume 1: General Discipline Regulations), 2012 edition, Ministère de la
New Zealand’s Military Manual (1992) provides: “One such obligation, and the one which
Défense Nationale, approved by Presidential Decree No. D 293/PRG/SGG/2012, 6 December 2012, Articles 1 and
10. clearly sets a member of a military force apart from his civilian counterparts, is the obligation
to obey lawful commands of a superior officer.”
Israel
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate
of Legal Services, Wellington, November 1992, Annex C, § C14(1).
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 The manual adds, however: “If a command is unlawful and is obeyed, the person who obeys it
with an offence. Only if the order itself is patently unlawful is he required not to perform could find himself charged with a criminal offence or a war crime”.
it, and indeed, under Israeli law, he would have no defence if he did execute it.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate
of Legal Services Wellington November 1992 Annex C § C14(2)
of Legal Services, Wellington, November 1992, Annex C, § C14(2).

The manual also states: South Africa

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 South Africa’s LOAC Manual (1996) states:
innocent civilians or to loot civilian property would be obviously unlawful. This kind of Every soldier has a duty to obey lawful orders of superiors. Failure to do so is a serious
order should never be obeyed and it should never be assumed that it will provide a defence offence. However, an order to commit a war crime is an unlawful order. A person who
if a charge results from its obedience. 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.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters,
Directorate of Legal Services, Wellington, November 1992, Annex C, § C14(4).
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A,
Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 44.
The manual further points out:
If … an unclear order is received, and especially if one of the possible meanings of the The manual further states: “The Constitution of the Republic of South Africa, 1996, provides
order appears to be unlawful, then clarification should be sought immediately. Blind that ‘no member of any security service may obey a manifestly illegal order’ [Section
obedience, in such cases, is not what is required. In … cases of unclear orders, blind 199(6)].”
obedience could lead to unfortunate and perhaps unforeseen results. In our example, both South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4:
the sergeant and the superior whom we infer meant to convey nothing in any way illegal, International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 44.
could find themselves the subject of serious charges, simply because an unclear order was
not clarified or questioned.
South Africa
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters,
Directorate of Legal Services, Wellington, November 1992, Annex C, § C14(5).
South Africa’s Medical Services Military Manual provides: “When an order is manifestly
illegal the subordinate has the duty to refuse to obey.”
Peru
South Africa, Medical Services Military Manual – Humanitarian Law, South African Medical Service Academy in
Voortrekkerhoogte, s.d, p. 5.
Peru’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
South Africa
more justifications for its execution.

Peru, Derechos Humanos: Decálogo de las Fuerzas del Orden, Comando Conjunto de las Fuerzas Armadas, Ministerio South Africa’s Revised Civic Education Manual (2004) states: “[A]n order to commit a war
de Defensa, Ejército Peruano, 1991, p. 13.
crime is an illegal order. … The Constitution of the Republic of South Africa, 1996, provides

Philippines that ‘no member of any security service may obey a manifestly illegal order’ (Section
199(6)).”
The Code of Ethics (1991) of the Philippines provides:
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 59.
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
South Africa
shall be subject to military discipline.

Philippines, Armed Forces of the Philippines Code of Ethics, 1991, Section 2.3, pp. 16–17. South Africa’s LOAC Teaching Manual (2008) states:
Operational Planning
Rwanda
…

Rwanda’s Disciplinary Regulations provides that a subordinate may not execute a manifestly - When issuing orders to subordinates, commanders must ensure that:
unlawful order.
- Subordinates are only issued with orders that are realistic and that can be executed
Rwanda, Règlement de Discipline Militaire – Amategeko ya Disciplini Y’Ingabo Z’Igihugu – Military Disciplinary legally in accordance with the LOAC [law of armed conflict];
Regulations, Article 15.
 - Orders contain all the necessary information needed to ensure respect for the LOAC; The Pamphlet further states: “Illegal orders are not to be given nor carried out.”

- No subordinates are allowed to obey a manifestly unlawful order[.] United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence,
prepared under the Direction of The Chief of the General Staff, 1981, Annex A, p. 46, § 2.
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as
amended to 25 October 2013, Learning Unit 5, p. 242.

United States of America

Spain

The US Field Manual (1956) states: “Members of the armed forces are bound to obey only
Spain’s LOAC Manual (2007) states that “combatants are not bound to obey orders if they
lawful orders.”
involve carrying out acts that are manifestly contrary to the laws and customs of war or
constitute a crime”. United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by
Change No. 1, 15 July 1976, § 509(b).
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda),
Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 7.2; see also
§ 11.5.a. United States of America

Switzerland The US Air Force Pamphlet (1976) states: “Members of the armed forces are bound to obey
only lawful orders.”

Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states: United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US
Department of the Air Force, 1976, § 15-4(d).
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. United States of America
…
245 … [Subordinates] do not execute any order of which they know that it violates the law The US Soldier’s Manual (1984) tells the soldier: “Although you are responsible for promptly
of armed conflict. If in doubt, they request further information from their superiors. obeying all legal orders issued by your leader, you are obligated to disobey an order to commit
[emphasis in original] a crime.”

Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of
based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection the Army, Washington, November 1984, p. 26.
and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 6 and 245.

United States of America

Tajikistan
The US Naval Handbook (1995) provides:
Tajikistan’s Manual of Internal Service of the Armed Forces (2001) states: “[T]he non- Members of the naval service, like military members of all nations, must obey readily and
execution of a deliberately unlawful order excludes criminal responsibility.” 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
Tajikistan, Manual of Internal Service of the Armed Forces of the Republic of Tajikistan, endorsed by the Decree of the
Madjilsi Namoyandagon of Madjlisi Oli [Parliament] of the Republic of Tajikistan No. 273 of 4 April 2001 and noncombatant or the torture of a prisoner, is an unlawful order and will not relieve a
promulgated by the Order of the Minister of Defence of the Republic of Tajikistan No. 3 of 2 May 2001, § 30. subordinate of his responsibility to comply with the law of armed conflict. [emphasis in
original]

United Kingdom of Great Britain and Northern Ireland United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-
2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and
Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly
The UK LOAC Pamphlet (1981) provides: “Military personnel are required to obey lawful NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.1.4.
commands but must not obey unlawful commands.”

United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, United States of America
prepared under the Direction of The Chief of the General Staff, 1981, Section 10, p. 38, § 1.

h l db k( )
The US Naval Handbook (2007) states: Under Australia’s Defence Force Discipline Act (1982), disobedience to a “lawful command” is
Members of the naval service, like military members of all nations, must obey readily and a punishable military offence.
strictly all lawful orders issued by a superior. Under both international law and U.S. law, Australia, Defence Force Discipline Act, 1982, Section 27.
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] Australia.

United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-
Australia’s Defence Force Discipline Act (1982), as amended to 2007, states:
12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and
Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.1.4. 27 Disobeying a lawful command
(1) A defence member is guilty of an offence if:
Uruguay
(a) a person gives the member a lawful command; and

Uruguay’s Disciplinary Regulations (1980) provides: “No subordinate shall hesitate to (b) the person giving the command is a superior officer; and
challenge the orders of his commanding officer when he deems it necessary.”
(c) the member disobeys the command.
Uruguay, Reglamento General de Servicios No. 21 (1a y 2a Parte), Reglamento de Disciplina y Servicio Interno, 4ta.
Edición, Publicación del Centro Militar, Vol. 61, Suplemento No. 58, April 1980, Article 40. Maximum punishment: Imprisonment for 2 years.

Australia, Defence Force Discipline Act, 1982, as amended to 2007, Division 3, § 27, p.32.

IV. National Legislation

Austria
Argentina

Austria’s Military Penal Code (1970), as amended, provides for the punishment, in principle,
Argentina’s Code of Military Justice (1951), as amended in 1984, applies disciplinary sanctions
of the non-execution of orders.
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 Austria, Military Penal Code, 1970, as amended, Articles 12–16.

military personnel who, while not ostensibly or expressly refusing to obey, fail without any

However, the Code also provides that a soldier is not punishable if he/she does not execute an
just cause to carry out a military order. It adds that no excuse shall justify disobedience or the order which consists in the commission of a punishable offence.
failure to carry out a military order.
Austria, Military Penal Code, 1970, as amended, Article 17.
Argentina, Code of Military Justice, 1951, as amended in 1984, Articles 667, 674 and 675.
Bangladesh
Armenia
Bangladesh’s Army Act (1952), as amended to 2006, states:
Under Armenia’s Penal Code (2003), failing to carry out a “properly given legitimate order” in (1) Any person subject to this Act who disobeys[,] in such a manner as to show a wilful
time of war is a punishable offence. defiance of authority[,] a lawful command given personally by his superior officer,
Armenia, Penal Code, 2003, Article 356(1) and (3). 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,
However, under the Code, “refusal to execute an obviously illegal order or instruction is an or with such less punishment as is in this Act mentioned.
exemption from criminal liability”. (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
Armenia, Penal Code, 2003, Article 47(3).
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
Australia punishment as is in this Act mentioned.

Bangladesh, Army Act, 1952, as amended to 2006, Article 33.

d l ’ f l ( ) d b d “l f l d”
 g , y , 9 , ,
order.

Bosnia and Herzegovina, Law on Service in the Armed Forces, 2005, Article 17.
Bangladesh

Bangladesh’s Air Force Act (1953), as amended to 1978, states: Brazil

(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 Under Brazil’s Military Penal Code (1969), disobedience to a lawful order is a punishable
the execution of his office whether the same is given orally or in writing or by signal or offence.
otherwise shall, on conviction by court-martial, be liable to suffer long imprisonment.
Brazil, Military Penal Code, 1969, Article 163.
(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. Chad

Bangladesh, Air Force Act, 1953, as amended to 1978, Article 41.

Chad’s Ordinance on the General Status of Military Personnel (1992) states: “Military
personnel must obey their superiors and carry out faithfully the tasks entrusted to them.”
Bangladesh Chad, Ordinance on the General Status of Military Personnel, 1992, Article 28.

Bangladesh’s Navy Ordinance (1961), as amended to 1986, states that any “person subject to
this Ordinance who wilfully disobeys any lawful command of his superior officer (by whatever Chile
means communicated to him), shall be liable to suffer long imprisonment.”
Chile’s Code of Military Justice (1925) provides:
Bangladesh, Navy Ordinance, 1961, as amended to 1986, Article 40.
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
Belarus

yield to the statutes or regulations does not exempt the subordinate from obedience nor
does it suspend the fulfilment of an operational order.
Under Belarus’s Criminal Code (1999), the failure to execute an order is a punishable offence.
Chile, Code of Military Justice, 1925, Article 334.
Belarus, Criminal Code, 1999, Article 439.

The Code further provides:

Belgium
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
Belgium’s Law on Discipline in the Armed Forces (1975) provides:
it, immediately reporting this to the superior … If the superior insists on maintaining the
Soldiers must faithfully execute the orders given to them by their superiors in the interest
order, it shall be carried out under the terms of the previous article.
of service. However, an order must not be executed if its execution could clearly result in
the perpetration of a crime or an offence. Chile, Code of Military Justice, 1925, Article 335.

Belgium, Law on Discipline in the Armed Forces, 1975, Article 11(2).

Croatia

Bosnia and Herzegovina Under 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
Bosnia and Herzegovina’s Law on Service in the Armed Forces (2005) states: orders they may have received.

(1) Military personnel shall be obliged to execute orders of their superiors that are related Croatia, Code of Criminal Procedure, 1993, Article 190; Law on Military Service, 1995, Article 27(1); Criminal Code,
to the service, with the exception of orders that contain elements of a criminal offence. 1997, Article 388.

(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 Croatia
 El 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.”
Croatia’s Defence Act (2002), as amended in 2007, states: “A member of the Armed Forces is
El Salvador, Law on the Armed Forces, 1998, Article 25.
allowed to disobey a command if this implies action contrary to the provisions of the
Constitution and rules of international humanitarian law.”

Croatia, Defence Act, 2002, as amended in July 2007, Article 92.

France

France’s Code of Defence (2004), as amended in 2007, states:

Cuba
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
Under Cuba’s Military Criminal Code (1979), disobedience or failure to obey an order is a
war and to the international conventions.
punishable offence, but if the order is regarded as an excessive requirement, the court may
apply special mitigation of the sanction. France, Code of Defence, 2004, as amended by Ordinance No. 2007-465 on 29 March 2007, Article L. 4122-1.

Cuba, Military Criminal Code, 1979, Article 5.

France

Democratic Republic of the Congo

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 …
The Democratic Republic of the Congo’s Constitution of the Transition (2003) provides:
[h]as the right and the duty to demand obedience from subordinates; he cannot order the
No one is required to execute a manifestly illegal order, in particular if it violates the
performance of acts contrary to the laws, rules of international law applicable to armed
fundamental liberties and rights of the human person.
conflicts and international conventions in force.
Proof of the manifest illegality of the order falls to the person who refuses to execute it.

D.4122-3.As a subordinate, the member of the military … [s]hall not execute an order that
Democratic Republic of the Congo, Constitution of the Transition, 2003, Article 25. 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.
Democratic Republic of the Congo
France, Code of Defence, 2004, as amended in 2008, Article D4122-2 and D4122-3.

The Democratic Republic of the Congo’s Constitution (2006) provides:

Germany
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 Germany’s Law on the Legal Status of Military Personnel (1995) stipulates that it is not to be
manifest violation of respect for human rights and public liberties and morals. regarded as disobedience if the subordinate does not carry out an order which would violate
Proof of the manifest illegality of the order falls to the person who refuses to execute it. human dignity.

Democratic Republic of the Congo, Constitution, 2006, Article 28. Germany, Law on the Legal Status of Military Personnel, 1995, § 11(1).

The Law also provides: “An order may not be complied with if, by that, a criminal act would be
Egypt
committed.”

Under Egypt’s Military Criminal Code (1966), failure to execute orders is punishable if the Germany, Law on the Legal Status of Military Personnel, 1995, § 11(2)(1).

order in question is “legal”. However, it also provides for the punishment of persons who do
not obey “military orders”.
Guinea
Egypt, Military Criminal Code, 1966, Articles 151, 152 and 153.
Guinea’s Constitution (2010) states: “No one is bound to carry out a manifestly unlawful
order. The law defines manifestly unlawful orders.”
El Salvador
Guinea, Constitution, 2010, Article 6.

El Salvador’s Law on the Armed Forces (1998) provides: “The duty to obey is limited to those
 defiance of authority disobeys any lawful command of his superior officer shall on
Guinea conviction by court-martial be liable [to punishment].
Every person subject to service law under this Act who, whether wilfully or through
Guinea’s Code of Military Justice (2011) states:
neglect, disobeys any lawful command of his superior officer shall on conviction by court-
Any serviceman or affiliated personnel who refuses to obey an order or who, except in the martial be liable [to punishment].
case of force majeure, does not carry out a received order, shall be punished with one (01)
Malaysia, Armed Forces Act, 1972, Section 50.
to two (02) years’ imprisonment.
The sentence can be increased by one (01) to three (03) years if the acts were committed
However, in a footnote related to the foregoing provision, the Act states with respect to
during an armed conflict in besieged territory or in territory in which there is a state of
“lawful command”: “The command must not be contrary to Malaysian or international law …
emergency, or on board of a ship or aircraft.
If a command is manifestly illegal the person to whom it is given would be justified in
Guinea, Code of Military Justice, 2011, Article 165. questioning and even refusing to execute it.”

Malaysia, Armed Forces Act, 1972, Section 50, footnote 4.

Hungary

Mexico
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
Mexico’s Law on the Discipline of the Army and Air Force (1926), as amended to 2004, states:
order he would commit a crime.”
It is strictly prohibited for a member of the military to give orders whose execution
Hungary, Law on National Defence and the Hungarian Defence Forces, 2004, § 108(1). constitutes a crime; … the subordinate who carries out such orders will be held responsible
according to the Code of Military Justice.

India Mexico, Law on the Discipline of the Army and Air Force, 1926, as amended to 10 December 2004, Article 14.

Under India’s Army Act (1950) and under other laws applicable to coast guards and border Mexico
police forces, disobedience to a lawful order is an offence.
Mexico’s Law on the Discipline of the Navy (2002) states:
India, Army Act, 1950, Section 41; Coast Guards Act, 1978, Section 20; Indo-Tibetan Border Police Force Act, 1992,
Section 23. 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
Jordan
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
Under Jordan’s Military Criminal Code (1952), disobedience to a lawful order is a punishable
responsibility [for carrying out a manifestly unlawful order].
offence.
Mexico, Law on the Discipline of the Navy, 2002, Article 17.
Jordan, Military Criminal Code, 1952, Article 17.

Nigeria
Kenya

Nigeria’s Army Act (1960) provides that military personnel have the duty to obey lawful
Under Kenya’s Armed Forces Act (1968), disobedience to a lawful command is an offence.
orders.
Kenya, Armed Forces Act, 1968, Article 28.
Nigeria, Army Act, 1960, Section 40.

Malaysia
Nigeria

Malaysia’s Armed Forces Act (1972) provides:

Nigeria’s Armed Forces Act (1993), as amended in 1994, states:
Every person subject to service law under this Act who in such manner as to show wilful
(1) A person subject to service law under this Act who, in such manner as to show wilful
 (1) A person subject to service law under this Act who, in such manner as to show wilful
The following shall be exempt from criminal responsibility and sanctions:
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. 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
(2) A person subject to service law under this Act who, whether wilfully or through
customs of war.
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 Peru, Code of Military and Police Justice, 2006, Article 19(8).
years or any less punishment provided by this Act.
Peru
Nigeria, Armed Forces Act, 1993, as amended in 1994, Article 56.

Peru’s Law on the Disciplinary Regime of the Armed Forces (2007) states:
Pakistan 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
Under Pakistan’s Army Act (1952), a soldier is liable to punishment if he disobeys a “lawful obliged to obey them and shall justify to their superior by giving them in writing the
command”. reasons for their conduct. If circumstances do not allow for a justification in writing,
subordinate personnel may give them orally.
Pakistan, Army Act, 1952, Section 33.

Peru, Law on the Disciplinary Regime of the Armed Forces, 2007, Article 3.

Pakistan
Peru

Pakistan’s Frontier Corps Ordinance (1959) provides for the punishment of “every member of
Peru’s Military and Police Criminal Code (2010) states:
the Frontier Corps who – … while on active service – … disobeys the lawful command of his
In cases concerning crimes against International Humanitarian Law, the punishment
superior officer”.
shall be lessened for individuals who carried out an order by a government, authority or
Pakistan, Frontier Corps Ordinance, 1959, Section 8(e)(i). superior, whether civilian or military, as long as:

a. The perpetrator did not know that the order was unlawful; and
Peru
b. The order was not manifestly unlawful.
Under Peru’s Code of Military Justice (1980), refusal or failure to execute a military order in
Peru, Military and Police Criminal Code, 2010, Article 77.
wartime constitutes a punishable offence. Failure to carry out an order in the course of duty
without justifiable cause constitutes disobedience. Poland

Peru, Code of Military Justice, 1980, Articles 78(24), 158, 159, 161, 162 and 172.
Poland’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.”
Peru
Poland, Penal Code, 1997, Article 343(1).

Peru’s Law on the Disciplinary Regime of the National Police (2004) states: “A subordinate is
However, the Code also states:
not obliged to obey orders that lead to the violation of human rights or the commission of a
crime, misdemeanour or administrative infraction.” 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.
Peru, Law on the Disciplinary Regime of the National Police, 2004, Article 32.
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
Peru extraordinary mitigation of punishment or desist from inflicting it.

Poland, Penal Code, 1997, Article 344.

Peru’s Code of Military and Police Justice (2006) states:
Th f ll i h ll b f i i l ibili d i
 I swear by the name of Allah:
Russian Federation
…
The Russian Federation’s Criminal Code (1996) provides:
- To comply and obey my superiors without wavering
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
2. From that day onwards, the person is bound to effectively fulfil this pledge. Any
on him. Criminal responsibility for infliction of such harm shall be borne by a person who
instances of failing to keep this pledge are considered as dishonest … and the person shall
gave the illegal order or instruction.
be liable for punishment.
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
12. Obedience shall be based on swiftness, respect and must not be half-hearted. [A]
instruction known to be illegal shall preclude criminal liability.
[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.
Article 332. Failure to Execute an Order 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
1. Failure to execute a superior’s lawful order by a subordinate, if it has caused substantial the given order.
harm to the interests of military service, shall be punishable by restriction in military Somalia, Act of Military Discipline, 1975, Articles 1–2 and 12; see also Articles 4, 7, 11, 17 and 72.
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. South Africa
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 South Africa’s Code of Military Discipline (1957), as amended in 1995, in a provision entitled
punishable by deprivation of liberty for a term of up to five years. “Disobeying lawful commands or orders”, provides:
3. Failure to execute an order, due to a careless or dishonest attitude to military service, if Any person who in wilful defiance of authority disobeys any lawful command given
it has involved serious consequences, shall be punishable by restriction in military service personally by his superior officer in execution of his duty, whether orally, in writing or by
for a term of up to one year, or by arrest for a term of three to six months, or by custody in signal, shall be guilty of an offence and liable on conviction.
a disciplinary military unit for a term of up to two years.
South Africa, Code of Military Discipline, 1957, as amended in 1995, § 19(1).

Russian Federation, Criminal Code, 1996, edition 2008, Articles 42 and 332.

South Africa
Rwanda

South Africa’s Constitution (1996) provides: “No member of any security service [i.e. defence
Rwanda’s Constitution (2003) provides:
force, police force and intelligence services] may obey a manifestly illegal order.”
In all circumstances, every citizen, whether civilian or military, has the duty to respect the
Constitution, other laws and regulations of the country. South Africa, Constitution, 1996, Section 199(1) and (6).

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 Africa
Rwanda, Constitution, 2003, Article 48.
South Africa’s Defence Act (2002) provides: “No member of the Defence Force may obey a
manifestly illegal order.”
Somalia
South Africa, Defence Act, 2002 § 2(e).

Somalia’s Act of Military Discipline (1975) states:

Oat[h] of the army South Africa
…
South Africa’s Prevention and Combating of Torture of Persons Act (2013) states:
I b th f All h
South Africa s Prevention and Combating of Torture of Persons Act (2013) states: p
Offences and penalties
Spain’s Royal Ordinances for the Armed Forces (2009) states: “If the orders [given by a
4. …
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
(3) Despite any other law to the contrary, including customary international law, the fact armed forces will not be under the obligation to obey them.”
that an accused person –
Spain, Royal Ordinances for the Armed Forces, 2009, Article 48.

(b) was under a legal obligation to obey a manifestly unlawful order of a government
Spain
or superior,
Spain’s Law on the Rights and Duties of Members of the Armed Forces (2011) states:
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
Article 2. Scope of application
such offence. 1. This law applies to all members of the Armed Forces who acquire the status of military
(4) No exceptional circumstances whatsoever, including but not limited to, a state of war, personnel in accordance with Law 39/2007, of 19 November, on Military Career.
threat of war, internal political instability, national security or any state of emergency Accordingly, it applies to official members of the armed forces, except for those persons
may be invoked as a justification for torture. in administrative roles whose status as military personnel is suspended and students
undergoing military training.
(5) No one shall be punished for disobeying an order to commit torture.
2. This status applies to members of the reserves and aspirants when they are
South Africa, Prevention and Combating of Torture of Persons Act, 2013, Section 4(3)–(5).
incorporated into the armed forces …
…
Spain
Article 6. Rules of conduct of military personnel
Spain’s Royal Ordinance for the Armed Forces (1978) provides: “Where an order would entail 1. The essential rules governing the conduct of military personnel are the following:
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.”
Eighth
Spain, Royal Ordinance for the Armed Forces, 1978, Article 34. 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
Spain
expression in obedience to orders received.

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 Tenth
breach of a precept of law or any other general provision. Responsibility in the exercise of military command cannot be renounced or shared. … All
Spain, Penal Code, 1995, Article 410.2. 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.
Spain
Eleventh
To obey orders that, in accordance with the law, are related to service given by military
Spain’s Law on the Military Career (2007) states: “If orders entail the commission of criminal
personnel to a subordinate in an appropriate form and within their power, to carry out or
acts, particularly those contrary to the Constitution or persons and objects protected in case of
omit to carry out a concrete action. Further, to fulfil the requests received from military
armed conflict, the serviceman or servicewoman shall not be bound to obey them.”
personnel of higher rank with regard to the general norms and provisions of order and
Spain, Law on the Military Career, 2007, Article 4(11). conduct.
Twelfth
Spain If the orders entail the carrying out of acts constituting a crime, in particular against the
 If the orders entail the carrying out of acts constituting a crime, in particular against the
Nation, its citizens or its institutions.”
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 Venezuela, Constitution, 2009, Article 338.

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
Viet Nam
or omissions.

Spain, Law on the Rights and Duties of Members of the Armed Forces, 2011, Articles 2 and 6(1). 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
Tajikistan
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
Tajikistan’s Criminal Code (1998) provides: “Non-execution of a knowingly unlawful order or
implementation of such orders.
instruction excludes criminal responsibility.”
Viet Nam, Law on Viet Nam People’s Army Officers, 1999, § 27.3.
Tajikistan, Criminal Code, 1998, Article 45(3).

Viet Nam
Uruguay

Viet Nam’s Criminal Code (2015), which includes war crimes, states:
Uruguay’s Organizational Law of Armed Forces (1974) states that military status imposes a
Chapter IV
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”. CASES OF EXEMPTION FROM CRIMINAL RESPONSIBILITY
…
Uruguay, Organizational Law of Armed Forces, 1974, Article 61.
Article 26. Following orders of commanders or superiors
A person who inflicts damage while following an order of his/her commander or superior
Venezuela
in the army to perform national defense and security duties is exempt from criminal
responsibility if he/she complies with procedures for reporting to the order giver but the
Venezuela’s Penal Code (2005) states:
order giver still request[s] that the order be followed. In this case, the order giver shall
Penalties shall not apply to: bear criminal responsibility.
This provision does not apply to the cases specified in Clause 2 Article 421, Clause 2 Article
1. Whoever acts fulfilling a duty or in the lawful exercise of a right, position of
422, and Clause 2 Article 423 hereof.
authority, office or post, without trespassing the law.
…
Venezuela, Penal Code, 2005, Article 65(1).
Chapter XXV INFRINGEMENTS UPON DUTIES AND RESPONSIBILITIES OF SERVICEMEN
Venezuela AND COOPERATORS WITH THE ARMY IN WARTIME
Article 392. People having criminal responsibility for infringement upon duties and
Venezuela’s Constitution (2009) states: responsibilities of servicemen
The public authorities, whether military, civilian or of any other kind, even during a state 1. Servicemen, military workers and employees.
of emergency, exception or restriction … are prohibited from committing, permitting or 2. Reserve servicemen during training period.
tolerating the forced disappearance of persons. An officer receiving an order or
3. Militia members [cooperating] with the army in wartime.
instruction to carry it out, has the obligation not to obey and to report the order or
4. Citizens recruited to the army.
instruction to the competent authorities.
Article 393. Giving orders against the law
Venezuela, Constitution, 2009, Article 45.
1. Any person who abuses his/her position to give order[s] against the law and as a result
causes serious consequences shall face a penalty of up to 03 years’ community [service] or
The Constitution further states: “A state of internal or external commotion may be declared in
06–60 months’ imprisonment.
the event of an internal or external [armed] conflict seriously endangering the security of the
N i i i i i i i i ” 2 This offence committed in any of the following cases shall carry a penalty of 03–10
2. This offence committed in any of the following cases shall carry a penalty of 03–10 a) The offence is committed in battle;
years’ imprisonment:
b) The offence is committed in a warzone;
a) The offence is committed in battle;
c) The offence is committed during a rescue mission;
b) The offence is committed in a warzone;
d) The offence is committed in time of emergency;
c) The offence is committed during a rescue mission;

d) The offence is committed in time of emergency;

dd) The offence results in very serious consequences or extremely serious
dd) The offence results in very serious consequences. consequences.

3. If the offence results in extremely serious consequences or in other extremely serious …

cases, the offender shall face a penalty of 07–15 years’ imprisonment. Chapter XXVI
Article 394. Insubordination DISRUPTION OF PEACE, CRIMES AGAINST HUMANITY, AND WAR CRIMES
1. Any person who defies or deliberately fails to follow an order given by a competent Article 421. Disruption of peace, provocation of war of aggression
person shall face a penalty of 06–60 months’ imprisonment. …
2. This offence committed in any of the following cases shall carry a penalty of 03–10 Article 422. Crimes against humanity
years’ imprisonment:
1. Any person who, whether in peacetime or wartime, commits genocide against [the]
population of an area, destroys sources of living [or the] cultural or spiritual life of a
a) The offender is a commander or commissioned officer;
nation or sovereign territory, upsets the foundation of a society in order to sabotage it, or
b) The offender drags another person into committing the offence; commits other acts of genocide, or destroys … the environment shall face a penalty of 10–
20 years’ imprisonment, life imprisonment, or death.
c) The offence involves the use of violence;
2. [If t]his offence is committed under pressure or order[s] given by superior officers, the
d) The offence results in very serious consequences. offender shall face a penalty of 10–20 years’ imprisonment.
Article 423. War crimes
3. This offence committed in any of the following cases shall carry a penalty of 07–15
years’ imprisonment: 1. Any person in wartime who orders or directly commits the murder of civilians, wounded
people, or prisoner[s] of war[]; pillages; destroys residential areas; uses banned war
a) The offence is committed in battle; instruments or methods[;] or commits other acts that seriously violate international law
or an international agreement to which [the] Socialist Republic of Vietnam is a signatory
b) The offence is committed in a warzone; shall face a penalty of 10–20 years’ imprisonment, life imprisonment, or death[.]

c) The offence is committed during a rescue mission; 2. [If t]his offence is committed under pressure or order[s] given by superior officers, the
offender shall face a penalty of 10–20 years’ imprisonment.
d) The offence is committed in time of emergency;
Viet Nam, Criminal Code, 2015, Articles 26, 392–395 and 421–423.
dd) The offence results in very serious consequences.
Zimbabwe
4. If the offence results in extremely serious consequences, the offender shall face a
penalty of 12–20 years’ imprisonment or life imprisonment.
Zimbabwe’s Defence Act (1972), as amended to 2005, states:
Article 395. Failure to strictly follow orders
Any member who
1. Any person [who] follows an order given by a competent person in an inattentive, tardy,
or arbitrary manner and as a result causes serious consequences shall face a penalty of up (a) in wilful defiance of authority, disobeys any lawful command given or sent to him
to 03 years’ community [service] or 06–36 months’ imprisonment. personally; or
2. This offence committed in any of the following cases shall carry a penalty of 03–10
(b) whether wilfully or through neglect, disobeys any lawful command;
years’ imprisonment:
shall be guilty of an offence.
a) The offence is committed in battle;
 y g p g y p
Zimbabwe, Defence Act, 1972, as amended to 2005, First Schedule, Article 14(2). he/she thought unlawful, if the order was confirmed in writing, the Court took the same
approach.

Colombia, Constitutional Court, Constitutional Case No. T-409, Judgment, 8 June 1992.
V. National Case-law

Belgium
Colombia, Constitutional Court, Constitutional Case No. C-578, Judgment, 4 December 1995.

In the Sergeant W. case in 1966, Belgium’s Court-Martial of Brussels sentenced a sub-officer Democratic Republic of the Congo
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 In November 2006, in the Bongi Massaba case, a case against a captain of the armed forces of
military technical co-operation between Congo (Democratic Republic of the Congo) and the Democratic Republic of the Congo, the Military Court of the Eastern Province held:
Belgium. The Court held that the accused’s interpretation of the order he had received, i.e. to
War crime of violence to life and person
kill an unarmed person in his power, was manifestly unlawful; the accused therefore had a
Whereas that offence is provided for and punished by article 8.2)c)i [of the 1998 ICC
duty to disobey this order.
Statute];
Belgium, Court-Martial of Brussels, Sergeant W. case, Judgment, 18 May 1966.
Whereas that offence consists of the following constitutive elements:

Canada 1. The perpetrator must have killed one or more persons;

In his dissenting opinion in the Finta case before the Canadian Supreme Court in 1994, one of Whereas, in the present case, the defendant Blaise Nogi Massaba has admitted having
the judges recognized that “military orders can and must be obeyed unless they are given the order to the group composed of warrant officer Batanga, Sergeant-Major
manifestly unlawful”. He added that an order was manifestly unlawful when it “offends the Mwanga, Sergeant Ramazani, Captain Mpinda and Corporal Takakule, to promptly
conscience of every reasonable, right thinking person; it must be an order which is obviously execute the pupils who had carried the pillaged objects, …
and flagrantly wrong. The order cannot be in a grey area or be merely questionable; rather it Whereas the defendant Blaise Bongi claims that he himself executed an order received
must patently and obviously be wrong.” from Major Faustin Kakule, who has contested this during the preliminary investigation
and preparation of the trial;
Canada, Supreme Court, Finta case, Dissenting opinion of one of the judges, 24 March 1994.
Whereas article 28 of the Constitution of the Democratic Republic of the Congo stipulates:

Chile “No one is required to execute a manifestly illegal order”;

Whereas the unlawfulness of the order allegedly given by Major Faustin Kakule could not
In its judgment in the Guzmán and Others case in 1974, Chile’s Santiago Council of War
have been doubted and the defendant Blaise Bongi Massaba would have had to refuse
stated:
executing it if such an order really had been given …
The provisions of Article 335 of the Code of Military Justice [which provides for the right
Whereas Professor Verhaegen reports, in this sense, the decision of the Belgian Military
to disobey an unlawful order] require that: a) an order be received from a hierarchical
Court in 1966, which the Military Court embraces:
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 act does not only constitute murder according to the provisions of the Congolese
the order’s performance.
[Penal] Code, but also a flagrant violation of the laws and customs of war and the laws
Chile, Santiago Council of War (FACH), Guzmán and Others case, Judgment, 30 July 1974. of humanity;

the unlawfulness of the order being manifest, the defendant had to abstain from
Colombia executing it”;

In a case relating to conscientious objection in 1992, the Colombian Constitutional Court Whereas, therefore, the criminal responsibility of the defendant Blaise Bongi Massaba can

considered that a superior’s order that would consist of occasioning death outside combat in no case be lifted.

would clearly lead to a violation of human rights and of the Constitution. As such it should be Democratic Republic of the Congo, Military Court of the Eastern Province, Bongi Massaba case, Judgment on
disobeyed. In another case in 1995, in which the Court was examining the constitutionality of Appeals, 4 November 2006.

a military regulation that provided that a subaltern was obliged to obey a superior’s order that
 According to Section 11, paragraph 1, sentence 1 of the Law on the Legal Status of Military
Denmark 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
In its judgment in the Hommel case in 2006, Denmark’s Eastern High Court was given
duties of service of every soldier … However, the obedience demanded by the legislator (of
evidence proving that, during interrogations of Iraqi detainees, an intelligence officer of the
the Law on the Legal Status of Military Personnel) is not a “blind” or “unconditional”
Danish armed forces had, inter alia, forced the detainees to stay in uncomfortable positions
obedience, which, e.g., Article 64, paragraph 1 of the constitution of the German Reich of
and used “forceful expressions”. The High Court stated:
16 April 1871 … and also the service oath of the soldiers of the German Wehrmacht of 20
This process is in itself hardly in agreement with the protection afforded to detainees in August 1934 … demanded of every soldier.
accordance with the [Fourth Geneva] Convention’s Articles 27 and 31. However, the High
Based on the Basic Law of the Federal Republic of Germany and the Law on the Legal
Court shall not make any assessment hereof as the High Court is only to consider whether
Status of Military Personnel, legal limits to the military ordering authority arise. They can
the defendant … during the interrogations has “gravely” neglected her military duties as
be summarized in seven sub-categories, whose requirements and mutual relations,
stated in the indictment, in accordance with the Military Penal Code paragraph 27.
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
[I]t has to be noted that [the defendant] by her superiors was given the task of carry out the two orders directed at him, the soldier could invoke his basic right of
interrogating the detainees with the purpose of assessing whether they were to be freedom of conscience according to Article 4, paragraph 1 of the Basic Law (see 4.1.3).
released, whether they were normal criminals that were to be transferred to the Iraqi 4.1.2.1 In Section 11, paragraph 1, sentence 3, half-sentence 1, alternative 1 of the Law on
authorities or whether they were a danger to the Coalition so that they should be the Legal Status of Military Personnel, the legislator, after laying down the general duty of
transferred to the British forces. She used methods, among others the dominating obedience, has expressly ruled that it is not a case of disobedience of a soldier if an order is
attitude, which she had learned during the POWEX-training, and which no one had not carried out which violates human dignity. Human dignity, which, according to Article
informed her could no longer be used. She had no further guidelines for the 1, paragraph 1 of the Basic Law, is “inviolable” (sentence 1) and to be respected and
interrogations, and was given no guidance from her superiors when she queried this. protected by “all State authority” (sentence 2), is violated if, on the basis of the order, the
Nobody intervened in the individual interrogations. Neither did any of the detainees suffer subordinate or a third person affected by the execution of the order is exposed to
any injury nor did they complain. treatment which expresses contempt for or disregard for the value due to the human
Under these circumstances, the High Court does not find that the defendant … “gravely” being by virtue of being a person … This is based on the idea of the human being as an
neglected her duties by interrogating the detained Iraqis under the circumstances that intellectual-moral being which is meant to determine and develop itself in freedom. The
according to the individual indictments have been proven above. 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
Denmark, Eastern High Court, Hommel case, Judgment, 6 July 2006, pp. 6 and 19.
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
Germany
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
In its judgment in the Dover Castle case in 1921, Germany’s Imperial Court held: “It is a
of the armed forces. The dignity of the human being as a person, which cannot be lost,
military principle that the subordinate is bound to obey the orders of his superiors.”
consists in its recognition, without exceptions, as a responsible personality …
Germany, Imperial Court (Reichsgericht), Dover Castle case, Judgment, 4 June 1921.
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
Germany 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

In 2005, in the Limits of Obedience to Superior Orders case, Germany’s Federal Administrative Law. In any case, it does not reduce that protection.

Court, in a military disciplinary matter, was called upon to decide whether a German soldier 4.1.2.2 According to the provision in Section 11, paragraph 1, sentence 3, half-sentence 1,
had violated his duty of obedience. The soldier had resisted orders to fulfil his tasks in an IT alternative 2 of the Law on the Legal Status of Military Personnel non-compliance with an
project, fearing to make a potential contribution to the 2003 Iraq conflict. The Federal order is further not a case of disobedience, if the order was not given for service-related
Administrative Court held: purposes. An order is only given for “service-related purposes” in this sense if it was

4.1.2 Legal limits of obedience 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
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 requires in particular also the obligation of the executive power and the courts to omit
4, paragraph 1 of the Basic Law), which is superseded neither by the normal statutory law everything that would give effect to acts of non-German authorities, undertaken in
provision on the duty of obedience according to Section 11, paragraph 1, sentence 3, half- violation of the “general rules of international law”, in the area of application of the Basic
sentence 1, alternative 2 of the Law on the Legal Status of Military Personnel, nor by other Law, … and that they are barred from determinatively participating in an act of non-
constitutional law provisions … It is therefore here not necessary to further examine or German authorities violating such rules … In the context of the Federal Armed Forces, in
decide whether the execution of the orders in view of the Iraq war commenced on 20 accordance with the precedence of Article 25, sentence 2 of the Basic Law, a superior’s
March 2003 would actually – as feared by the soldier – have partially served non service- military order which is contrary to the “general rules of international law” cannot
related purposes as described above and whether they were non-binding already because demand obedience of a superior based on Section 11, paragraph 1, sentences 1 and 2 of the
of that. 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
4.1.2.3 In the present proceedings, the question of a violation of Section 11, paragraph 2,
directed to him. Article 25 of the Basic Law insofar supersedes the legal effects of Section
sentence 1 of the Law on the Legal Status of Military Personnel does not need to be further
11, paragraph 1, sentences 1 and 2 of the Law on the Legal Status of Military Personnel and
examined either. That provision regulates that orders are (also) not binding if by carrying
directly obligates the subordinate …
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 The “general rules of international law” comprise, according to the established case-law
would be an offence under international criminal law … This normal statutory law of the Federal Constitutional Court, competent to bindingly determine them in cases of
provision also does not supersede the constitutional law protection of the basic right to doubt based on Article 100 of the Basic Law, apart from those norms which have the
freedom of conscience (Article 4, paragraph 1 Basic Law), which the soldier can quality of international law “ius cogens” (= indisposable, “compulsory” international law
successfully invoke in the present case. 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
4.1.2.4 The provisions in Section 11, paragraph 1, sentence 3, half-sentence 1, alternatives 1
Article 38, paragraph 1, letter c of the Statute of the International Court of Justice …
and 2 as well as paragraph 2, sentence 1 of the Law on the Legal Status of Military
Elements of “ius cogens” are, inter alia, the international law prohibition on the use of
Personnel noted above do not exhaustively enumerate the grounds which render a
force, reflected in Article 1, no. 4 of the UN Charter, and the fundamental rules of the
military order not binding. This is generally accepted and corresponds to the established
humanitarian international law of war … The existence of customary international law
case-law of this Senate … Accordingly, Section 22, paragraph 1 of the Military Penal Code
thereby requires a practice followed by a multitude of States representing all legal cultures
[Wehrstrafgesetz], which regulates the criminal law assessment of non-compliance with
worldwide (“general practice”), which is generally exercised with the conviction to be
a non-binding order, provides that an order is not binding “in particular” if it was not
under an international law obligation to act that way (“opinio iuris”). To be taken into
given for service-related purposes, or if it violates human dignity, or if by carrying it out a
consideration when assessing norms of customary international law are, first of all, the
criminal act would be committed. This statutory formulation (“in particular”) shows that
acts, binding under international law, of those State authorities called upon to represent
the legislator has not exhaustively regulated the grounds rendering an order not binding
the State in international law relations by virtue of international or national law. Apart
in Section 11 of the Law on the Legal Status of Military Personnel. It is therefore
from that, however, such a practice can also show in the acts of other State organs, such
uncontested in principle that orders are not binding whose execution is objectively
as those of the legislator or the courts, at least insofar as their acts are directly relevant in
impossible …, which are materially contradictory …, or which have become pointless due
international law, for example when serving to fulfil an international law obligation or to
to a fundamental change of circumstances. There is no such case here.
fill an international law margin of discretion …
4.1.2.5 Legally not binding, according to the constitutional law provision in Article 26,
In contrast, international treaty law regulations, i.e. international law treaties and
paragraph 1, sentence 1 of the Basic Law, is further an order whose issuing or execution is
agreements concluded by legal acts between subjects of international law, generally do
to be qualified as an act “tending to and undertaken with intent to disturb the peaceful
not belong to the “general rules of international law” in the sense of Article 25 of the
relations between nations, especially to prepare for a war of aggression” … In the current
Basic Law, unless they were reflecting (in a declaratory way) legal norms of “ius cogens”
case, the court need not decide [this], because here the soldier (already) due to the
or customary international law. This, of course, does not change that military orders –
protective effect of his basic right to freedom of conscience (Article 4, paragraph 1 of the
also below the threshold making them non-binding under Article 25, sentence 2 of the
Basic Law) did not need to carry out the orders directed at him …
Basic Law – may only be given within the boundaries of Section 10, paragraph 4 of the
4.1.2.6 An order given to a subordinate is furthermore not binding if issuing or executing it
Law on the Legal Status of Military Personnel, namely, inter alia, “only taking account the
violates the “general rules of international law”. Those are, according to Article 25 of the
rules of international law”, i.e. the complete international law, including international
Basic Law, an “integral part of federal law” (sentence 1). They “shall take precedence over
treaty law.
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 Whether carrying out the two orders in question here actually would have causally
 Whether carrying out the two orders in question here actually would have causally Judicial District stated:
generated – as the soldier thinks – a violation of the “general rules of international law”,
The rule is that a soldier must obey every order (subject to the exception) given him by his
does not need to be further examined and decided here, because the soldier could in any
commander while fulfilling his duty … The exception is that he need not execute an order
case invoke Article 4, paragraph 1 of the Basic Law [freedom of conscience] against the
that is manifestly illegal.
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. As to the term “manifestly illegal”, the Court went on to explain that:

4.1.2.7 Finally, a military order further is not binding on a subordinate, if, after weighing The identifying mark of a “manifestly unlawful” order must wave like a black flag above
all the relevant circumstances, he cannot be reasonably expected to carry it out. This has, the order given, as a warning saying: “forbidden”. It is not formal unlawfulness, hidden
in principle, been for a long time accepted in case law and expert literature … The specific or half-hidden, not unlawfulness that is detectable only by legal experts, that is the
requirements, however, have so far not been sufficiently clarified … However, Article 1, important issue here, but an overt and salient violation of the law, a certain and obvious
paragraph 3 of the Basic Law as well as the drafting history and systematic context of unlawfulness that stems from the order itself, the criminal character of the order itself or
Article 4, paragraph 1 of the Basic Law show that in any case a military order cannot be of the acts it demands to be committed, an unlawfulness that pierces the eye and agitates
reasonably expected to be carried out if the subordinate in question can insofar invoke the the heart, if the eye be not blind nor the heart closed or corrupt. That is the degree of
protection of freedom of conscience … “manifest” illegality required in order to annul the soldier’s duty to obey and render him
criminally responsible for his actions.
…
4.1.3. Order and freedom of conscience (Article 4, paragraph 1 of the Basic Law) Israel, District Military Court for the Central Judicial District, Ofer, Malinki and Others case, Judgment, 13
October 1958.
…
4.1.3.1 Protective effect of Article 4, paragraph 1 of the Basic Law The Military Court of Appeal adopted these words and added that the legislator’s solution to
4.1.3.1.1 Already the wording of the basic provision on the duty of obedience of a soldier in the problem of conflict between law and obedience is, as it were, a golden mean between
Section 11, paragraph 1, sentence 2 of the Law on the Legal Status of Military Personnel giving complete preference to one of those factors over the other, because it recognized
shows that a soldier has to carry out an order directed at him “conscientiously” (to the the impossibility of reconciling these two values through purely formal law, and therefore
best of his abilities, completely and immediately). This formulation contains as an foregoes the attempt to resolve the problem by these means alone; it bursts out of the
element of the term (“conscient-iously”) directly the link to the conscience (Lat. confines, as it were, of the purely judicial categories, calling for help on the sense of
“conscientia”, Greek “syneidesis”), from which the adjectives “conscientious” and lawfulness that lies deep within the conscience of every human being as such, even if he is
“conscienceless” are deduced … not expert in the law.
Requested of the soldier is therefore not a “conscience-less”, but a “conscient-ious”
Israel, Military Court of Appeal, Ofer, Malinki and Others case, Judgment, 3 April 1959.
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
Italy
“unconditional” obedience is not compatible with this normative imperative. Requested
is rather a “thinking” obedience, an obedience “reflecting” the consequences of carrying
In its judgment in the Hass and Priebke case in 1997, Italy’s Military Tribunal of Rome stated
out the order – especially also with regard to the limits of the applicable law and the
that the duty to disobey an openly criminal order was independent from the fact that the
ethical “yardsticks” of the personal conscience. In the present case it need not be further
subordinate could or could not prevent the event. The Tribunal further stated: “It is evident,
examined and decided under which concrete conditions compulsory imperatives of the
indeed, that a member of the armed forces must not obey an unlawful order given to him even
personal conscience exceptionally justify or even command the refusal to carry out an
if he is aware that other persons may be willing to carry it out.”
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 Italy, Military Tribunal of Rome, Hass and Priebke case, Judgment in Trial of First Instance, 22 July 1997.

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 In its relevant parts, this judgment was confirmed by the Military Appeals Court and the
subject to the corresponding proviso of its conformity with the Basic Rights. Supreme Court of Cassation.

Germany, Federal Administrative Court, Limits of Obedience to Superior Orders case, Judgment, 21 June 2005, Italy, Military Appeals Court, Hass and Priebke case, Judgment on Appeal, 7 March 1998; Supreme Court of Cassation,
pp. 28–37 and 46–47. Hass and Priebke case, Judgment in Trial of Third Instance, 16 November 1998.

Israel
Netherlands

In the Ofer, Malinki and Others case in 1958, Israel’s District Military Court for the Central
In its judgment in the Zuhlke case in 1948, the Special Court at Amsterdam stated with regard
Judicial District stated:
 g g
to the accused’s plea of superior orders: 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
The Court rejects this plea. Indeed … there was no need for him in the given circumstances
action is lawful should be resolved by the courts. If the citizen is dissatisfied with the law
to carry out such orders. An order to commit actions forbidden by international law may
as laid down by the courts, he must campaign for Parliament to change it. …
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 86. My Lords, to legitimate the use of force in such cases would be to set a most dangerous
humiliation of prisoners, does not belong to the sphere of military subordination. The precedent. As Lord Prosser said in Lord Advocate’s Reference No 1 of 2000 2001 JC 143,
accused, who was not only a prison warder by occupation but had also been trained as a 160G-H:
non-commissioned officer, must have known this.
“What one is apparently talking about are people who have come to the view that their
Netherlands, Special Court at Amsterdam, Zuhlke case, Judgment, 3 August 1948.
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.
Philippines 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.”
In its judgment in the Margen case in 1950, the Supreme Court of the Philippines held:
87. A time of war is the extreme example of the dangers. Of course citizens are entitled,
“Obedience to an order of a superior gives rise to exemption from criminal liability only when
indeed required, to refuse to participate in war crimes. But if they are allowed to use force
the order is for some lawful purpose … [In this case] the order was illegal, and appellant was
against military installations simply to give effect to their own honestly held view of the
not bound to obey it.”
legality of what the armed forces of the Crown are doing, the Statute of Treason would
Philippines, Supreme Court, Margen case, Judgment, 30 March 1950. become a dead letter.

United Kingdom, House of Lords, Jones and others case, Judgment, 29 March 2006, §§ 83–84 and 86–87.

Sri Lanka
United States of America
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 In the Calley case in 1973, the US Army Court of Military Appeals approved the following
commands given by his superior officers. It is not applicable to a command which is obviously instructions given to the panel by the trial judge in a case where the accused invoked an order
unlawful.” to kill unresisting detainees:
A determination that an order is illegal does not, of itself, assign criminal responsibility to
Sri Lanka, Court of Criminal Appeal, Wijesuriya case, Judgment, 5 November 1973, p. 26.
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.
United Kingdom of Great Britain and Northern Ireland 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,
In 2006, in the Jones and others case, the UK House of Lords were called upon to decide obliged to respond, not as a machine, but as a person. The law takes these factors into
whether the crime of aggression was part of the domestic criminal law of England and Wales. account in assessing criminal responsibility for acts done in compliance with illegal
The appellants, charged with various criminal offences committed against UK military orders.
installations in 2003, contended that their acts were legally justified, for having been intended
United States, Army Court of Military Appeals, Calley case, Judgment, 21 December 1973.
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:
The Court cited a writer’s opinion to the effect that:
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 For the inferior to assume to determine the question of the lawfulness of an order given
the citizen cannot get the courts to order the law enforcement authorities to act (compare him by a superior would of itself, as a general rule, amount to insubordination, and such
R v Commissioner of Police of the Metropolis, Ex p Blackburn [1968] 2 QB 118) then he an assumption carried into practice would subvert military discipline. Where the order is
must use democratic methods to persuade the government or legislature to intervene. 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
84. Often the reason why the sovereign power will not intervene is because it takes the
exceptions recognized to the rule of obedience being cases of orders so manifestly beyond
 exceptions recognized to the rule of obedience being cases of orders so manifestly beyond article 77 [of the draft Additional Protocol I]. Since the article should relate solely to grave
the legal power or discretion of the commander as to admit of no rational doubt of their breaches, paragraph 1 could be approved without reservation.”
unlawfulness …
Australia, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.51, 5 May 1976, p. 128, § 26.
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 Belgium
original]
In 2006, in its second periodic report to the Committee against Torture, Belgium stated:
United States, Army Court of Military Appeals, Calley case, Judgment, 21 December 1973, referring to Col.
William Winthrop, Military Law and Precedents, pp. 296–297, 2nd edition 1920 (reprint). 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
United States of America 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
In 1995, in the Huet-Vaughn case before the Court of Appeals for the Armed Forces, the US 01, 23 August 2005.
Government successfully appealed the decision of the Court of Military Review that had set
Belgium, Second periodic report to the Committee against Torture, 14 August 2007, UN Doc. CAT/C/BEL/2,
aside the findings and the sentence imposed by a court martial that had found Huet-Vaughn submitted 21 September 2006, § 490.
(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:
Burundi
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
In 2010, within the context of a Training Workshop on Military Criminal Law for Military
“Nuremberg defense” applies only to individual acts committed in wartime; it does not
Judges, Burundi’s Ministry of National Defence and Former Combatants stated:
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 The CPM [Military Penal Code (1980)] seems to establish the principle of the absolute,
Cir. 1969), cert. denied, 397 U.S. 909 (1970). The duty to disobey an unlawful order applies mechanical and blind obedience, as if the servicemen should execute the orders received
only to “a positive act that constitutes a crime” that is “so manifestly beyond the legal without any discernment, even when the orders were manifestly unlawful. Despite the
power or discretion of the commander as to admit of no rational doubt of their lack of provision in the CPM attenuating the principle of obedience, there is an exception:
unlawfulness.” United States v. Calley, 22 U.S.C.M.A. 534, 543, 48 C.M.R. 19, 28 (1973), “A manifestly unlawful order shall not be executed”.
citing Lambert v. California, 355 U.S. 225, 228, 2 L. Ed. 2d 228, 78 S. Ct. 240 (1957), and W. Indeed, the servicemen shall obey the orders from their superiors but they are responsible
Winthrop, Military Law and Precedents 296–97 (2d ed. 1920 Reprint). CPT Huet-Vaughn for the execution of the missions which are assigned to them. Only the illegality of the
tendered no evidence that she was individually ordered to commit a “positive act” that order received might allow the subordinate not to execute it. However, if the motivation of
would be a war crime. 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,
United States, US Court of Appeals for the Armed Forces, Huet-Vaughn case, Judgment, 28 September 1995.
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.
VI. Other National Practice
Burundi, Ministry of National Defence and Former Combatants, Training Workshop on Military Criminal Law for
Argentina Military Judges, November 2010, p. 19.

According 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.
Chile
Argentina, Chief of Staff of the Army, Statement of 25 April 1995, Revista de la Escuela Superior de Guerra, July–
September 1995, p. V; see also Chief of Staff of the Army, Statement of 29 May 1995, Revista de la Escuela Superior de
According to the Report on the Practice of Chile, “Chile adheres to the principle of reasoned
Guerra, April–June 1995, p. I.
obedience”.
Australia Report on the Practice of Chile, 1997, Chapter 6.8.

At 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
Colombia
 t ga dw c , pa t cu a , ta es to co s de at o t e co seque ces o ca y g
out the order. Refusals to obey orders merely because of differing personal views,
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence however, are not permissible. The limits of permissible fulfilment of orders are set by
of Colombia stated: Section 11, paragraph 1, sentence 3, and paragraph 2 of the Law on the Legal Status of

[T]he very progress achieved by the DSDP [Democratic Security and Defence Policy] has Military Personnel [Soldatengesetz]. There can therefore be no unconditional authority of

created new scenarios and new challenges which require a more detailed breakdown of the and loyalty to superiors.

Constitutional mandate. There are two aspects of this mandate. First, it establishes the Germany, Bundestag, Reply by the Federal Government to the Minor Interpellation by the Members Ulla Jelpke,
rules of IHL as the framework for and the limits on the conduct of operations, as Sevim Dağdelen, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE – BT-Drs.
16/4533, Description of the generals of the Federal Armed Forces as opportunistic, cowardly and unscrupulous,
expressed by the Constitutional Court on various occasions when interpreting Article 91 of
BT-Drs. 16/4726, 20 March 2007, p. 3.
the Constitution: “the jurisprudence has limited this principle [the duty of obedience] in
the field of military discipline to compliance with the prohibitions enshrined in
International Humanitarian Law”. [footnote in original omitted] India

Square brackets in original.

The Report on the Practice of India, referring to provisions of the Army Act, Coast Guard Act
Colombia, Ministry of National Defence, Comprehensive Human Rights and IHL Policy, January 2008, § 8. 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
Cuba
the relevant provisions very clearly provide that a person is not supposed to wilfully defy
‘lawful’ orders or commands given by the superiors”.
The Report on the Practice of Cuba states:
Report on the Practice of India, 1997, Chapter 6.8.
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 Israel
comparable with excessive requirement to obey, and the possibility of not obeying can
therefore be envisaged. At the CDDH, Israel stated that it had voted in favour of Article 77 of the draft Additional
Report on the Practice of Cuba, 1998, Chapter 6.8. 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].
Egypt
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
The Report on the Practice of Egypt, referring to an explanatory memorandum relative to
government or of a superior which, if carried out, would constitute a grave breach of the
Article 15 of Egypt’s Military Criminal Code, which provides for the punishment of not
provisions of the Conventions or of the present Protocol”] continues to be governed by
executing legal orders, notes “the fact that the order of a superior should be a ‘legal one’”.
customary international law.
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.” Israel, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.45, 30 May 1977, p. 336.

Report on the Practice of Egypt, 1997, Chapter 6.8.

Israel

The Report on the Practice of Israel states:

Germany Under general Israeli law and IDF [Israeli Defense Forces] internal regulations, there
exists a differentiation between an “unlawful order” and a “manifestly unlawful order”.
In 2007, in reply to a minor interpellation in the Bundestag (Lower House of Parliament) Based on the understanding that clarity of command is a required element in any military
entitled “Description of the generals of the Federal Armed Forces as opportunistic, cowardly organization, all IDF soldiers are required to comply with “unlawful orders” … As regards
and unscrupulous”, Germany’s Federal Government wrote: “manifestly unlawful orders” … IDF soldiers are required by law to refuse any such order.
The Federal Government shares the view of the Federal Administrative Court … that the
Report on the Practice of Israel, 1997, Chapter 6.8.
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
Italy
thinking and which, in particular, takes into consideration the consequences of carrying
 disobeyed the command which is illegal … Thus the opinio juris and the practice in

On the basis of the decisions of the Military Tribunal of Rome in the Priebke case and in the Pakistan is that unlawful command can be refused.

Hass and Priebke case, the Report on the Practice of Italy concludes that “the opinio juris of Report on the Practice of Pakistan, 1998, Chapter 6.8.
Italy is that a soldier has the duty to disobey an order to commit a violation of international
humanitarian law”.
Philippines
Report on the Practice of Italy, 1997, Chapter 6.8.

The Report on the Practice of the Philippines, referring to a provision of the Revised Penal
Jordan 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

According to the Report on the Practice of Jordan, Article 17 of the Military Criminal Code of is obviously illegal, the person has the duty to disobey it.”

Jordan, which provides for the imposition of a penalty upon a subordinate who disobeys a Report on the Practice of Philippines, 1997, Chapter 6.9, referring to Revised Penal Code, 1930, Article 11(6).
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”.
Russian Federation
Report on the Practice of Jordan, 1997, Chapter 6.8.

The Report on the Practice of the Russian Federation states: “No document of the CIS
Kuwait [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

In an article published in a military review, a member of the Kuwaiti armed forces stated: 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
If a soldier receives an illegal order, he should draw the attention of his commander to the
crime and is prosecuted as a penal offence.”
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. Report on the Practice of the Russian Federation, 1997, Chapter 6.8.

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.
Spain
Fellah Awad Al-Anzi, “The accomplishment of duties and the execution of military orders, their limits and
constraints”, Homat Al-Watan, No. 149, p. 61.
The Report on the Practice of Spain states:
Since the subordinate is not protected [from penal responsibility under the Military
Kuwait 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
According to the Report on the Practice of Kuwait, under Kuwait’s military laws, soldiers take international humanitarian law.
the oath to obey rightful orders.

Report on the Practice of Spain, 1998, Chapter 6.8.

Report on the Practice of Kuwait, 1997, Chapter 6.8.

Spain
Pakistan
In 2010, in its report to the UN General Assembly on the status of the 1977 Additional
The Report on the Practice of Pakistan states: Protocols, Spain stated:

Although the text of the oath [for soldiers] merely refers to obedience to “all commands”, The framework guaranteeing that members of the armed forces will conduct themselves
still it is to be understood that the text of the oath … cannot be read beyond the provisions in accordance with international humanitarian law is constituted by … article 48 of Title II
of [section 33 of the Army Act (1952) which provides that a soldier is liable to punishment on Discipline [of the Royal Ordinances for the Armed Forces (2009)] [which] provides that
if he disobeys a “lawful command”]. It is to be noted that although there is no provision “if orders involve carrying out criminal acts, especially crimes against the Constitution
explicitly stating that unlawful command should be disobeyed, still the section 33 can be and against protected persons and property in armed conflict, members of the armed
interpreted to mean that there will be no punishment under the Army Act if the soldier has forces shall be under no obligation to obey them”.
disobeyed the command which is illegal Thus the opinio juris and the practice in
 Spain, Report on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the
protection of victims of armed conflict, 5 May 2010, Section 2.
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment
or punishment, the UN General Assembly:
United States of America
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
According to the Report on US Practice, it is the opinio juris of the United States that the law of imprisonment or any other form of deprivation of liberty for not obeying orders to
war obliges all persons not to commit war crimes. The duty to obey the law of war prevails commit or conceal acts amounting to torture or other cruel, inhuman or degrading
over the duty to obey a manifestly unlawful order. treatment or punishment.
Report on US Practice, 1997, Chapter 6.8.
UN General Assembly, Res. 61/153, 19 December 2006, § 8, adopted without a vote.

Uruguay UN General Assembly

During a debate in Committee I of the CDDH, Uruguay, although criticising Article 77 of the In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment
draft Additional Protocol I submitted by the ICRC, stated that it “supported the principles or punishment, the UN General Assembly:
underlying Article 77, which undoubtedly had its place in the section of draft Protocol I
Stresses that States must not punish personnel who are involved in the custody,
dealing with the repression of breaches”.
interrogation or treatment of any individual subjected to any form of arrest, detention or
Uruguay, Statement at the CDDH, Official Records, Vol. IX, CDDH/I/SR.52, 6 May 1976, p. 144, § 45. 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.
VII. United Nations
UN General Assembly, Res. 62/148, 18 December 2007, § 11, adopted without a vote.

UN General Assembly

UN Commission on Human Rights

In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment
or punishment, the UN General Assembly:
In a resolution adopted in 2003 on torture and other cruel, inhuman or degrading treatment
Stresses that States must not punish personnel [who may be involved in the custody, or punishment, the UN Commission on Human Rights stressed that States “must not punish
interrogation or treatment of any individual subjected to any form of arrest, detention or personnel for not obeying orders to commit acts amounting to torture or other cruel, inhuman
imprisonment] … for not obeying orders to commit or conceal acts amounting to torture or degrading treatment or punishment”.
or other cruel, inhuman or degrading treatment or punishment.

UN Commission on Human Rights, Res. 2003/32, 23 April 2003, § 9, adopted without a vote.

UN General Assembly, Res. 58/164, 22 December 2003, § 11, adopted without a vote.
UN Commission on Human Rights
UN General Assembly
In a resolution adopted in 2004 on torture and other cruel, inhuman or degrading treatment
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
or punishment, the UN General Assembly: personnel for not obeying orders to commit 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 UN Commission on Human Rights, Res. 2004/41, 19 April 2004, § 10, adopted without a vote.
imprisonment 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
UN General Assembly, Res. 60/148, 16 December 2005, § 7, adopted without a vote.

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
UN General Assembly
lf t b i d t it t ti t t t th l i h
personnel for not obeying orders to commit acts amounting to torture or other cruel, inhuman members of the Sudan People’s Liberation Army and its affiliated organizations.
or degrading treatment or punishment”.
…
UN Commission on Human Rights, Res. 2005/39, 19 April 2005, § 12, adopted without a vote.

d) Disobedience of Lawful Orders from a Superior.

UN Commission on Human Rights (Special Rapporteur) SPLM/A, Penal and Disciplinary Laws, 4 July 1984, Section 26(d).

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.”

UN Commission on Human Rights, Special Rapporteur on the Situation of Human Rights in Burundi, Second report,
UN Doc. E/CN.4/1997/12, 10 February 1997, § 93.

VIII. Other International Organizations

No data.

IX. International Conferences

No data.

X. International and Mixed Judicial and Quasi-judicial Bodies

No data.

XI. International Red Cross and Red Crescent Movement

No data.

XII. Other

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.”

SPLM, Human Rights Charter, May 1996, § 11.

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