FAQ # 1 - What is an illegal order? What is a "Manifestly" or
"Patently" illegal order?
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.
References:
Hebrew
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.
http://noar.education.gov.il/main/upload/alsederyom/obedience1.doc
http://www.snunit.k12.il/minhal/12084.html
http://www.snunit.k12.il/minhal/12083.html
http://www.snunit.k12.il/minhal/word/40309.doc
Manifestly Illegal Order, Hebrew Wikipedia (Kfar Kassem, 300 bus cases before
the Israel Supreme Court)
http://he.wikipedia.org/wiki/%D7%A4%D7%A7%D7%95%D7%93%D7%94_%
D7%91%D7%9C%D7%AA%D7%99_%D7%97%D7%95%D7%A7%D7%99%D7%AA_
%D7%91%D7%A2%D7%9C%D7%99%D7%9C
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
http://cellcom.channel.co.il/cellmagz/content/specials/chayalim03/chayalim017.htm
Professor Yitzhak Shamir on Crimes against Humanity / Manifestly illegal
order claims
http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?
itemNo=478741&contrassID=2&subContrassID=3&sbSubContrassID=0
Supreme Court Justice Elyakim Rubinstein calls on the military not to compel
religious soldiers to obey orders to evacuate residents
http://news.msn.co.il/news/CriminalLawCourt/Law/200412/20041219092600.htm
Israeli revision website, Civics
http://www.sikumim.co.il/sikumim/grade11/ezrahut5.htm
ENGLISH
Eichmann trial, the logic of manifest illegality (3/4 down the page)
http://www.nizkor.org/hweb/people/e/eichmann-adolf/transcripts/Sessions/Session-112-05.html
Detailed overview on obedience, manifest illegality, trial cases, through:
International Law, US Law and Military history, UCMJ
http://www.law.duke.edu/shell/cite.pl?13+Duke+J.+Comp.+&+Int'l+L.+389
US Uniform Code of Military Justice (UCMJ), article 90 on disobedience of
a lawful command
http://usmilitary.about.com/od/punitivearticles/a/mcm90.htm
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.
Haaretz. http://www.haaretz.com/hasen/spages/524504.html
4th Geneva Convention and Israel; Kfar Kassem – Wikipedia "talk".
http://en.wikipedia.org/wiki/User_talk:Humus_sapiens/policies
Blog. Short item saying that Disengagement does not violate Israeli law,
therefore orders to implement it are not "manifestly illegal".
http://alisainwonderland.silentrunning.tv/archives/005274.html
by Gila Ansell Brauner