The Nuremberg trials were supposed to have established that "only following orders" isn't a sufficient defense for war crimes. Since the trials, has there been an example of a soldier who refused to obey an order that would have involved committing war crimes, and was not prosecuted for insubordination (or was prosecuted, but acquitted by a military court on the grounds that the orders were illegal)?

Offhand I can't think of any examples. Wikipedia's article on superior orders does not help:

  • Mỹ Lai massacre: Hugh Thompson's crew played a part in stopping the massacre, but they apparently didn't receive orders to shoot, and hence were not disobeying them.
  • There were a few Iraq war resisters who refused to be drafted, but it's not the same as refusing an order to engage in a war crime.

There's also this incident I'm aware of: the Incident at Pristina Airport.

The following morning, Sunday 13 June, Clark arrived at Jackson's HQ in Skopje. It was pointed out to Clark that the Russians were isolated and could not be reinforced by air and that Russian support had been a vital part of getting a peace agreement; antagonising them would only be counterproductive. Clark refused to accept this and continued to order that the runway be blocked, claiming to be supported by the NATO Secretary-General. Jackson refused to enforce Clark's orders, reportedly telling him "I'm not going to start the Third World War for you." When again directly ordered to block the runway, Jackson suggested that British tanks and armoured cars would be more suitable, in the knowledge that this would almost certainly be vetoed by the British government. Clark agreed.

Jackson was ready to resign rather than follow Clark's order. The British Ministry of Defence authorised British force commander Richard Dannatt to use 4 Armoured Brigade to isolate the airfield but not to block the runways. James Blunt has been quoted as saying he would rather have faced a court martial than use force against the Russians. Clark's orders were not carried out, and the United States instead placed political pressure on neighbouring states to not allow Russia to use their airspace to ferry in reinforcements. Russia was forced to call off the reinforcements after Bulgaria, Hungary, and Romania refused requests by Russia to use their airspace.

But I doubt attacking the Russians would have been a war crime.

  • 3
    This is tricky: "not prosecuted". So the examples I'd have in mind of refusal, prosecution, acquittal would not count? 'No prosecution' would mean here that the order would just go from "I refuse"–"Ah, fine then"? I somehow doubt that there would be that many examples of this made public. Jul 12, 2021 at 6:52
  • 3
    I would suggest that that most militaries would not voluntarily publicise or draw attention to themselves having issued illegal orders.
    – Semaphore
    Jul 12, 2021 at 7:40
  • Hmm, good point.
    – Allure
    Jul 12, 2021 at 7:52
  • Chelsea Manning and Edward Snowden were not ordered to shoot innocent civilians; as such, they did not disobey any direct order of this particular type. The former faced a sentence of decades of imprisonment, before being eventually pardoned, while the latter fled to Canada. This happened during peace time, in one of the world's most democratic countries.
    – Lucian
    Jul 12, 2021 at 9:21
  • 1
    @Lucian Snowden was not a soldier and these two examples are more akin to spy trials, which are very different in nature from this question. Jul 13, 2021 at 20:09

1 Answer 1



Per This article, it appears to have happened at least once. The article is about disobeying unlawful orders in general, but this particular section seems to best answer your question.

The defense of superior orders in cases of reprisal attacks is so weak that it is hardly ever attempted. In the spring of 2008, soldiers of Alpha Co, 1-18th Infantry lined four Iraqi prisoners up near a canal and executed them. The Iraqis were captured during a raid of a house found to contain weapons. They denied knowing anything about where the weapons came from, which was almost certainly a lie. The company’s first sergeant ordered that the Iraqis be transported to a nearby canal, where he instructed his men to shoot them, saying it was revenge for fallen comrades. Some of the men in the unit balked and refused [emphasis mine] , but others participated in the killings. When the incident was finally exposed, those involved in the killings were tried by court-martial....No one involved pretended that the first sergeant’s order excused their conduct because that defense had no realistic chance of success.

At no point in the article (or any related articles I could find on the matter) does it say the soldiers who "balked and refused" the order to execute the Iraqis were court-marshalled or otherwise punished for insubordination. Probably because the order was so egregious there even the First Sgt. who ordered it knew there could only be one reasonable outcome if their disobedience came to trial. In general the Manual of Courts-Martial for the US Armed forces lays out that any discipline/refusal of orders/insubordination matter is brought up by (or at least requires the support of in terms of affidavits etc) the person who issued the order. If your order was "Shoot these civilians" and somebody disobeys it, the odds seem pretty good you aren't going to go to your JAG office or superior officer and tell them "I ordered private Joe to shoot unarmed detainees and he refused so I want him charged with failure to obey a direct order."

  • And even if you did, the JAG would likely decline to prosecute. Doing so would risk airing "dirty laundry" in public if there was any press coverage. So dealing with disobedience arguably motivated by avoiding war crimes would be incentivized to sweep under the rug. Jul 14, 2021 at 17:43
  • Presumably the superior officer issuing the orders could say "those weren't actually unarmed detainees, they were going to do X, Y, Z and we needed to stop them, and because private Joe didn't shoot private John died". The facts will be disputed, some of the time.
    – Allure
    Mar 9 at 1:47

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