Refusal of a Direct Order

Recently a colleague quoted what the organization, B’tzelem, allegedly had urged: that Israeli soldiers on the Gaza border refuse direct orders from their commanders to fire on Palestinian protestors who were approaching the fence line.  In response, I wrote to him stating that such advocacy was not only dangerous to the mission, but tantamount to treason.  Several others Reform rabbis, in turn, have asked me about the morality that might be involved in such a refusal.  Morality isn’t the issue when it comes to refusal of a direct order.  That is something that any Israeli soldier would have had the opportunity to question BEFORE the mission as is explained below:

Basically, the answer comes down to whether an order is illegal or not.  There are differences between the U.S. military’s definition and the Israeli, and how such incidents ultimately will be adjudicated, although there seem to be more similarities than not.

My point, however, is/was that the encouragement of soldiers to break ranks and refuse orders which, prima facie, haven’t been proven to be illegal is to endanger the soldier’s unit and the given mission.  No army can operate under the circumstances of each service person being his or her own mitzaveh (commander).  It matters not that those urging such behavior think that what they are advocating is just, right or moral. They are recommending behavior that clearly violates military law and their urging only serves to undermine the good order and discipline so necessary on any battle field both to fight and to protect those who are doing so.

As written by the Jewish Agency:

“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 well-being 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.”   (http://www.jewishagency.org/disengagement/content/26403)

In addition, the Israeli army educates its soldiers on what is a legal and what is an illegal order.  This training begins as early as high school.   The circumstances that soldiers are confronting on the Gaza border aren’t unknown and have been experienced before although not in the magnitude; therefore, soldiers who might have difficulties with an order would have had ample opportunity to address this beforehand.  This is in addition to the fact that legal officers are assigned to each unit and can clear up any legal issues that might arise.  Therein are safeguards here that weren’t readily available to the forces that went into My Lai or to German soldiers during WWII.

That any agency or authority from any other field or activity than the military would encourage such a refusal of orders is subversive at best and, as I read Israeli law, would seem to fall under the rubric of treason.  I, however, am not a lawyer.  I have repeated the dangers of such behavior, and I, again, would caution about the dire potentialities and consequences that it could well engender both to military members as well as, ultimately, to the State.

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