General Discussion

18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal.

For example, orders to fire upon the shipwrecked would be clearly illegal.27 Similarly, orders to kill defenseless persons who have submitted to and are under effective physical control would also be clearly illegal.28 On the other hand, the duty not to comply with orders that are clearly illegal would be limited in its application when the subordinate is not competent to evaluate
whether the rule has been violated. 29

Subordinates are not required to screen the orders of superiors for questionable points of legality, and may, absent specific knowledge to the contrary, presume that orders have been lawfully issued.30