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Secretary of Defense Pete Hegseth, during a televised press briefing at the Pentagon on the Iran war on March 13, vowed this about America’s response to Iran’s ruling regime: “We will keep pushing, keep advancing. No quarter, no mercy for our enemies.”

These words in themselves could be a violation of both U.S. and international law.

Hegseth’s declaration of “no quarter” implicates a foundational prohibition under the law of war. These are the binding rules agreed to by states that seek to mitigate the horrors and bloodshed of conflict through pragmatic balancing of humanitarian and military considerations. The prohibition of the denial of quarter is a paradigmatic illustration of the law of war advancing both sets of considerations.

Dating back to at least the Civil War, the denial of quarter has been forbidden. As articulated in the 1863 Lieber Code (Instructions for the Government of Armies of the United States in the Field, General Order No. 100), “It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter.” (emphasis added) This rule would subsequently be incorporated into treaties to which the United States is a party, including in the regulations annexed to the 1907 Hague Convention IV, and as customary law binding on all states. Importantly, this law of war rule applies to air, land and sea warfare.

As reflected in the Lieber Code (and the Department of Defense’s own Law of War Manual), the ban on denial of quarter includes both: 1) a prohibition on conducting hostilities on the basis that legitimate offers of surrender by enemy personnel will not be accepted, but instead that there should be no survivors, and 2) a prohibition on simply declaring no quarter itself.

In other words, the law of war prohibits military leaders from the speech act of announcing “no quarter” alone.....

Denial of quarter is also a war crime under U.S. law. The War Crimes Act criminalizes violations of the following rule: “it is especially forbidden… [t]o declare that no quarter will be given.” Thus U.S. criminal law, like the international law of war, imposes individual liability for the speech act of declaring “no quarter” itself — regardless of whether the declaration is ever implemented.

A declaration of no quarter by a military leader is not only an unlawful order (the subject of a now famous video message from a number of Democratic lawmakers), but one that a court would likely find to be manifestly or patently unlawful. This means that if military subordinates were to execute a directive of no quarter, they would have no viable defense of following superior orders.