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How do rules of engagement and international humanitarian law affect determinations of unlawful orders?
Executive summary
Rules of engagement (ROE) and international humanitarian law (IHL) shape when an order is legally binding and when subordinates may be required to refuse it: U.S. military doctrine and the DoD Law of War manual teach that servicemembers must not follow "clearly illegal" orders, while courts-martial and military judges normally decide lawfulness in disputes [1] [2]. International law similarly forbids orders that amount to war crimes—targeting civilians, starving populations, or blocking humanitarian access—and requires states and commanders to investigate and prosecute such violations [3] [4] [5].
1. How ROE and military law set the baseline for "lawful" orders
ROE are operational instructions that translate legal limits and policy into what combatants may do in a specific mission; they can be guidance or binding command depending on the jurisdiction and are drafted into plans at theater and joint levels [6] [7]. In U.S. practice, the Rules for Courts‑Martial and the Uniform Code of Military Justice presume orders lawful unless clearly beyond authority, and military lawyers at multiple levels review and establish standing and mission-specific ROE [2] [1]. That institutional review creates a presumption of legality, but it does not eliminate the individual duty to refuse patently unlawful orders [1] [2].
2. The individual duty to disobey unlawful orders under U.S. law
U.S. doctrine and case law emphasize that servicemembers can be prosecuted both for following unlawful orders and for willfully disobeying lawful ones; the critical standard is whether an order is "patently illegal" or manifestly criminal [8] [2]. The DoD Law of War manual and military training instruct troops they must not carry out clearly illegal orders, and historical court‑martials—such as Lt. William Calley at My Lai—serve as examples where subordinates should have refused [1] [2]. Military judges ultimately decide lawfulness in courts‑martial, which means a servicemember’s refusal can shift the legal question into post‑action adjudication [2].
3. International humanitarian law defines unlawful conduct that can make orders criminal
IHL—through the Geneva Conventions, customary law, and related instruments—identifies specific prohibited acts (e.g., intentionally targeting civilians, using starvation as a method of warfare, obstructing humanitarian assistance, and sexual violence) that, if ordered, make compliance criminal under international law [4] [3]. States and commanders have duties to prevent and investigate such violations; international bodies and NGOs repeatedly call for accountability where humanitarian access is denied or civilians are deliberately harmed [5] [3].
4. When an order becomes a war crime, and who decides that
An order that directs the commission of a crime under domestic or international law is "patently illegal" and removes the protection of obedience. Whether a specific order meets that threshold is often contested: under U.S. procedure the military judge decides lawfulness during trial, while in international practice tribunals or investigative bodies assess whether conduct amounts to war crimes or other IHL violations [2] [5]. That means legal clarity is sometimes retroactive—soldiers may face prosecution for following orders even when they believed them lawful, and decisionmakers can be prosecuted for issuing unlawful commands [2] [4].
5. Practical obstacles: ambiguity, operational pressure, and institutional constraints
Recognized authorities stress that identifying unlawful orders in real time is difficult. ROE and the presumption of legality can create ambiguity, and fast‑moving battlefield conditions, hierarchical pressure, and limited access to legal advice complicate split‑second choices [7] [2]. Advocacy groups and legal commentators warn that even where IHL violations are systemic—such as patterns of denying humanitarian aid—the pathway to holding commanders or states accountable is political and legal, requiring investigations and sometimes international litigation [9] [3].
6. Competing viewpoints and political context in recent U.S. debate
Recent U.S. political debate highlights tensions: some Democratic lawmakers urged troops to refuse unlawful orders in a viral video, prompting critics who argue the message undermines discipline and who demand concrete examples of such orders [10] [11]. Media and veteran voices differ: some former JAGs said they found no example of illegal orders under the current administration, while others urged specificity to avoid confusion in the ranks [12] [13]. These disagreements reveal political and institutional stakes—messaging about refusal can be framed as protecting the rule of law or as eroding command authority [11] [13].
7. What reporting does not say / limits of available sources
Available sources do not mention a comprehensive, universally applicable checklist for servicemembers to use in the field to identify unlawful orders; instead, doctrine, precedent, and judicial determination are cited as the governing mechanisms [2] [1]. Sources also do not uniformly describe how commanders should protect subordinates who refuse an order in real time beyond the legal frameworks that apply post‑facto [2] [8].
Conclusion: ROE operationalize legal limits and create a presumption that orders are lawful, but both U.S. military law and IHL place a binding obligation on individuals and commanders not to carry out clearly illegal acts; determinations often require later judicial or investigative review, and political debate over public guidance to troops underscores the tension between discipline and accountability [6] [2] [4].