How does international law treat unlawful orders and the duty to disobey them?

1. The legal baseline: no automatic shield for “I was just following orders”

After Nuremberg, international law rejected wholesale exoneration for following superior orders: soldiers cannot rely automatically on obedience to excuse the commission of clearly unlawful acts. This principle appears across national commentary and practice and underpins the criminal‑order concept — an order to commit a war crime is itself unlawful and obliges disobedience ^{[5] [6] [2]}.

2. What counts as an unlawful order under international law

Sources define unlawful orders as those that clearly violate core norms: crimes under the Geneva Conventions/LOAC (like deliberately targeting civilians, killing shipwrecked survivors), torture, or other internationally prohibited acts. The ICRC’s statement that “every combatant has a duty to disobey a manifestly unlawful order” encapsulates the LOAC position ^{[1] [4] [6]}.

3. The “manifestly unlawful” threshold is deliberately narrow

Both legal scholars and military commentators emphasize that the threshold for refusal is not subjective disagreement with policy but objective obviousness: an order must be plainly and unambiguously illegal (for example, orders to kill non‑combatants) for the duty to disobey to arise. That narrow standard preserves civilian control of forces while protecting troops from having to second‑guess lawful commands in the heat of operations ^{[4] [2]}.

4. Criminal liability and defenses: duties and limits

If service members carry out manifestly unlawful orders, they can face prosecution by national courts, court‑martials, or international tribunals. Conversely, the “obedience” defense can mitigate liability where an order was not manifestly unlawful; Article 33 of the ICC Statute and national doctrines reflect this structure: the defense exists only when the order was not patently criminal ^{[2] [5]}.

5. Practical and doctrinal tensions on the ground

Scholars and military sources warn troops may struggle to recognize the manifestly unlawful line in real time, raising fears of wrongful compliance or wrongful refusal. Surveys of U.S. service members and FAQs for practitioners show troops want clear guidance but face ambiguity when orders fall into gray areas between policy and clear criminality ^{[3] [7]}.

6. High‑profile controversies show the stakes

Recent reporting about alleged orders to kill shipwrecked survivors and debates over strikes at sea illustrate how quickly policy disputes can become questions of war crimes and unlawful orders. Analysts point to longstanding LOAC rules banning deliberate killing of survivors and treat such alleged orders as paradigmatic of manifestly unlawful commands ^{[1] [8]}.

7. Competing perspectives and institutional agendas

Legal NGOs and human‑rights commentators stress robust duty to disobey to uphold humanitarian norms, while some military and policy voices stress the need for a narrow standard to maintain command cohesion and civilian control. Each side’s framing reflects institutional priorities: accountability and civilian protection versus operational order and discipline ^{[9] [4] [2]}.

8. What sources do not address directly

Available sources do not mention detailed, step‑by‑step protocols for an individual soldier’s decision process in contested orders beyond general guidance and FAQs; they also do not provide exhaustive case law examples resolving real‑time disobedience claims in U.S. courts (not found in current reporting).

9. Bottom line for practitioners and the public

International law and U.S. practice converge on one clear rule: obey lawful commands; refuse manifestly unlawful ones — especially orders to commit crimes like intentionally targeting civilians or killing shipwrecked survivors. The remaining dispute is legal and practical: how plainly illegal must an order be before a soldier is expected to say no, and who will judge that choice later — courts, military tribunals, or international bodies ^{[1] [4] [5]}.