Keep Factually independent
Whether you agree or disagree with our analysis, these conversations matter for democracy. We don't take money from political groups - even a $5 donation helps us keep it that way.
What defenses (e.g., superior orders, necessity, mistake) are recognized when someone follows an order later deemed manifestly illegal?
Executive summary
Military law and international practice reject a blanket “just following orders” defense: servicemembers can be criminally liable if they obey manifestly unlawful orders, while they also generally have a duty to refuse such orders — but the threshold for “manifest” illegality is high and fact-specific (see the ICRC view and multiple U.S. analyses) [1] [2] [3]. Reporting across legal groups and news outlets shows both warnings that troops risk court-martial for refusal absent manifest illegality and advice that they must disobey clearly illegal commands, leaving substantial practical uncertainty for front-line personnel [2] [4] [5].
1. The legal baseline: “Following orders” is not an absolute defense
The foundational point across international and U.S. law is that obedience alone does not excuse criminal acts; post‑World War II jurisprudence and Geneva‑related guidance make liability possible where a subordinate knew or should have known an order was unlawful (ICRC summary cited in ABC News) [1]. Multiple outlets emphasize that the so‑called “Nuremberg defense” has been repeatedly rejected: obeying an illegal order does not automatically shield the follower from prosecution [6] [7].
2. The operative phrase: what “manifestly unlawful” means — and why it matters
U.S. military law and commentators consistently frame the exception narrowly: orders must be “manifestly unlawful,” meaning so plainly criminal that a person of ordinary understanding would recognize them as illegal (this standard is cited by former JAGs and defense counsel) [2] [3]. Legal writers and organizations warn that the burden to prove manifest illegality falls on the service member, creating a high bar and operational risk if refusal isn’t solidly grounded [3] [7].
3. Recognized defenses and their limits (superior orders, necessity, mistake)
Available sources discuss three practical defenses in this area but show limits and differing emphases. Superior orders as a standalone defense is largely rejected — obedience can mitigate sentence in rare cases but does not absolve criminality when the order was manifestly unlawful (ICRC/AB C summary; reporting on Nuremberg) [1] [6]. Necessity or duress (refusing would cause immediate harm to self or others) is not extensively covered in the current pieces; available sources do not mention detailed contemporary U.S. case law treating necessity as a carte blanche defense in the military context (not found in current reporting). Mistake of law (a good‑faith but incorrect belief that an order was lawful) is noted as risky: personnel who disobey based on a vague or subjective belief may still face court‑martial because the manifestness standard is objective [7] [3].
4. Practical guidance given to troops — and the institutional tension
Lawyers, watchdogs and advocacy groups urge troops to seek legal advice before disobeying, unless the order is obviously criminal (e.g., orders to kill unarmed civilians), because the presumption is orders are lawful and refusal can trigger prosecution for willful disobedience [3] [2]. At the same time, advocacy groups and some lawmakers publicly tell servicemembers they may and should refuse illegal orders, a message that military commentators warn can sow confusion when delivered outside the chain of command [8] [5].
5. Recent political flashpoint — why coverage surged in 2025
News coverage and commentaries in late 2025 were driven by a public video urging troops to refuse illegal orders and by political reactions calling that advice “seditious.” Fact‑based reporting by outlets like CNN, The Washington Post and PolitiFact stress that experts reject the sedition claim but also underscore the vagueness of the manifestly unlawful standard and the real risks troops face if they act on uncertain legal judgments [6] [9] [7].
6. Competing viewpoints and hidden incentives
Military law commentators and former JAGs emphasize order‑discipline and the narrowness of the refusal defense, reflecting an institutional interest in avoiding breakdowns in command [2] [3]. Civil liberties groups and some lawmakers stress individual duty to refuse illegal orders and shield rights, reflecting an accountability and rule‑of‑law emphasis [10] [5]. These differences highlight implicit agendas: preserving command authority versus protecting individual conscience and legal compliance.
7. What remains unsettled and what service members should do
The reporting shows consensus on legal principles but disagreement on application: the standard of “manifest” illegality is settled in theory but vague in practice, so individual outcomes depend on context and proof [2] [7]. Practical steps emphasized across sources: if possible, seek immediate legal counsel through military channels; document orders and contexts; and refuse only when illegality is clear on its face (e.g., orders to commit war crimes) — otherwise you risk prosecution for disobedience [3] [4].
Limitations: this analysis relies on recent press, legal FAQs and commentaries collected here; detailed case law, DoD directives and statutory nuances are not exhaustively cited in the provided materials, so deeper legal research would be necessary for case‑specific advice (available sources do not mention additional doctrinal statutes or specific appellate rulings beyond the discussed coverage).