The history of liability for following military orders contravening the laws of war can be traced back to the Treaty of Versailles, the Nuremberg Trials of Nazi war criminals and, later, to the Geneva Convention. In general, it means that prisoners' lives and wellbeing are protected from cruelty and death, as are those of unarmed civilians, refugees, medical personnel; it protects hospitals, places of prayer, etc.: any order to the contrary is not only illegal, it is manifestly illegal.
A member of the armed forces is constrained by military law to obey orders – otherwise, the system and chain of command would collapse. People of all kinds and views serve in the armed forces and not every order will be to their way of thinking – it may even go against their conscience. A soldier must, under practically every circumstance, obey an order: his or her refusal to do so may incur serious consequences in terms of security, operational success, and personal responsibility at trial. [Pacifists refuse to serve in the military under any circumstances and many countries excuse service on ideological grounds; conscientious objectors, or those who refuse to serve in compulsory military service for political reasons, may find themselves in prison – this, in many countries.]
There is a difference between an illegal order and a manifestly illegal order. An illegal order can be in contravention of general legality, such as orders to make improper use of facilities, go beyond the speed limit in a military vehicle. A manifestly or patently illegal order applies to the protection of persons (civilians, prisoners, medical personnel and clergy), medical facilities, places of prayer, monuments, etc. (this list is not exhaustive). The US distinguishes a patently illegal order as one which orders someone to commit a crime.
Anyone serving in the armed forces should be instructed on how to make such judgments and what the penalties are: however, to succeed in a military operation, or to save lives, it may be necessary to drive a vehicle at above the speed limit - and a soldier would be bound to obey, if there were no other circumstances - such as risk to other lives. However, this clear-cut picture is deceptive, because in many countries, illegal orders are also the responsibility of the person who obeys them if they constitute a crime (patently illegal), as well as that of the officer who gives them - albeit a crime of a lesser degree.
Ultimately, in Israel it is the Supreme Court which determines post facto (afterwards) if an order was or was not manifestly illegal, and who is to be held fully or partially liable, but the Supreme Court is not there at the point in time when an order is given. Thus understanding the nature of an order and refusal to obey an order remain the responsibility of the soldier concerned, and at his or her own risk - whether it is legal (lawful – US), illegal, or manifestly illegal. On the other hand, obeying a manifestly illegal order is a very serious offense, particularly if the facts are clearly there on the ground: both the perpetrator(s) and the commanding officer are liable to prosecution.
The advice to Israeli soldiers is, therefore, to know the law of the land and the IDF Code of Conduct, and then follow all orders, except for those that are manifestly illegal; however, before any refusal to obey an order on these grounds, a soldier should question the superior officer, up to company commander, to check the facts.
It is internationally assumed that a soldier can distinguish, "a manifestly illegal order, on the face of it… without legal counsel". In Israel, a soldier has the right and duty of refusing "A manifestly illegal order, on which the black flag of illegality flies" (Supreme Court on the 1956, Kfar Kassem massacre).
Soldiers have a right to their political views and have to grapple with their consciences individually about orders which go against their conscience; the IDF should take this into account and not place soldiers in impossible situations.
However, the serving soldier and only the soldier has the obligation to determine whether an order is manifestly illegal; orders that might raise issues of conscience or disagreement about a law (one that does not violate Israeli or International Law) are not relevant to this category, are not illegal, and do not fall under the purview of manifest illegality.
Israel Ministry of Education/Snunit – background and exercises, assignments for high school classes on obeying orders and manifestly illegal orders, with case histories and citations, also refusal to serve.
Manifestly Illegal Order, Hebrew Wikipedia (Kfar Kassem, 300 bus cases before the Israel Supreme Court)
Refusal to obey an order, rabbinical response to a query: obey the law of the land and the IDF http://www.kipa.co.il/ask/show.asp?id=58100
More cases, in brief
Professor Yitzhak Shamir on Crimes against Humanity / Manifestly illegal order claims
Supreme Court Justice Elyakim Rubinstein calls on the military not to compel religious soldiers to obey orders to evacuate residents
Israeli revision website, Civics
Eichmann trial, the logic of manifest illegality (3/4 down the page)
Detailed overview on obedience, manifest illegality, trial cases, through: International Law, US Law and Military history, UCMJ
US Uniform Code of Military Justice (UCMJ), article 90 on disobedience of a lawful command
Clinging hypocritically to civil rights, Professor David Kretzmer – for land that does not belong to Israel under International Law, there is no legal basis in the Geneva Convention to claim that evacuation of its Israeli residents could be defined as a "transfer" and would be a crime against humanity – thus, nor are orders to evacuate civilians manifestly illegal.
4th Geneva Convention and Israel; Kfar Kassem – Wikipedia "talk".
Blog. Short item saying that Disengagement does not violate Israeli law, therefore orders to implement it are not "manifestly illegal".
by Gila Ansell Brauner