Militaries around the world are increasingly requiring their lawyers to clear operations as an inherent part of their operation planning process. This trend raises an important question: To what extent can soldiers refuse an order – that received legal clearance by military legal advisors – based on the claim that the order is manifestly unlawful?
Recent developments in Israel have driven former high-ranked officers to express surprising views on this question. Their views exposed that legal clearance is not only changing the locus of the decision to refuse an order from the combatants to miliary lawyers, but also changing the metric by which the decision to refuse is taken. Rather than relying on a metric that is at least partly based on combatants’ “gut-feeling,” under the reign of military lawyers, the metric is solely based on legal reason. These changes create challenges to the conventional conception that legal involvement in clearing military operations necessarily means a lower likelihood of manifestly unlawful orders occurring. It also reveals how the involvement of lawyers allows combatants to absolve themselves from thinking about human rights considerations as long as they believe the military functions as part of a democratic regime.
Voices of Dissent in the Israeli Security Establishment
The recent protests against the Netanyahu government’s plan to overhaul Israel’s constitutional regime led to a serious rift in the relationship between the government and the Israel Defense Force (IDF). For the first time in Israel’s history, a large number of reserve soldiers, including from elite units, informed superiors of their intention not to report to reserve service if the government continues with its reform plans.
One result of this rift is that former top officials in the Israeli security establishment started to publicly air their critique on matters of security in an unprecedented manner. This came to the fore in debates over the legality of the airstrike that began Israel’s May 2023 operation in Gaza. The airstrike, which occurred on May 9, killed three senior operatives of the Islamic Jihad terrorist organization along with ten innocent civilians, including three children. The airstrike occurred at night and targeted the homes of the Jihad operatives and thus, unsurprisingly, caused the death of other family members who were sleeping at these locations. While debates in Israeli media on the legality of military operations have occurred in the past, this time new and surprising voices participated in the debate.
Eli Bachar, a former chief legal advisor to Israel’s secret service – the Shin Beit – wrote a stunning op-ed in Haaretz (the op-ed was not translated into English but is summarized in the English edition of Haaretz). He argued that the order to conduct the May 9 airstrike raised “black flags” marking it as manifestly unlawful. Bachar’s explained that what distinguished this case from previous targeted killings, is that IDF’s commanders did not deny that they knew that the airstrike would bring the death of around ten innocent civilians. Conversely, in past targeted killings that caused the death of innocent civilians, IDF commanders denied that they knew the attack would cause such results.
The metaphor of a “black flag” marking a manifestly unlawful order comes from the Israeli Supreme Court’s judgment in the Kafr Qasim case, in which it wrote:
The distinguishing mark of a “manifestly unlawful order” should fly like a black flag above the order given, as a warning saying “Prohibited!”. Not formal unlawfulness, hidden or half-hidden, nor unlawfulness discernible only to the eyes of legal experts, is important here, but a flagrant and manifest breach of the law, definite and necessary unlawfulness appearing on the face of the order itself, the clearly criminal character of the acts ordered to be done, unlawfulness piercing the eye and revolting the heart, be the eye not blind nor the heart not stony and corrupt, that is the measure of “manifest unlawfulness” required to release a soldier from the duty of obedience upon him and make him criminally responsible for his acts.
In writing that the May 9 order was marked by a black flag, Bacher is saying that the IDF’s pilots should have refused the order. Moreover, the former legal advisor of the Shin Bet, a role that requires regular review and approval of highly contested interrogation techniques, implicitly writes that the military legal advisors approved an order that was not only unlawful but manifestly unlawful. While Bacher was not the first to press these points, hearing such a view from the former legal advisor of the Shin Bet was surprising.
A few days earlier, Retired Major General Ran Goren – who served as a fighter pilot and later as the Deputy Commander of the Air Force – resisted the claim that the pilots should have refused to obey the May 9 order. In an op-ed, published in Hebrew, titled “A Black Flag Marking the Targeted Killing Order? Definitely Not,” Goren first defended the May 9 order. He explained that the extreme conditions of bombing a densely populated area make it almost inevitable that innocent citizen would be killed. Second, Goren argued that the pilots are unaware of all the considerations that enter into an order to strike a certain site. He explained that pilots rely on a functioning chain of command that includes legal scrutiny. Goren’s wrote that it is:
[I]nappropriate to require the aircraft crew to examine whether there is a black flag marking each mission. It is certainly not required of them to see “a black flag” marking every airstrike that may bring civilian casualties and based on that refuse to execute it… when a true “black flag” would mark a mission, it would hit the pilot’s conscience without him needing to detect it and contemplate about it. (Unofficial translation by the author.)
Goren also replied to the criticism that pilots demonstrate a double standard in their declarations of their intent to refuse to serve in the IDF. As part of the protest against the plan to overhaul the judiciary, pilots have explained their intent to refuse to serve in terms of defending democracy. They argue that the Netanyahu government’s reform would weaken the judiciary based on the reformers’ mistaken view that democracy is mainly a majoritarian decision-making procedure. Rather, the pilots stress that human rights are an inherent part of what democracy means, and that judicial scrutiny is required for properly defending those values. But all the while – so goes the critique – the same pilots do not refuse to serve in the name of human rights when it comes to protecting the lives of Palestinians.
In response, Goren argued that as long as Israel is a democracy in which courts are strong enough to restrain the government, a pilot can rely on the legal scrutiny mechanisms that every order goes through. Goren assumes that the moment the government’s reform passes, and the Supreme Court is weakened, pilots would no longer be able to assume that orders went through potent legal scrutiny. The foundation for this argument is that judicial scrutiny gives legal advisors the ability to argue that an order “will not hold in court” and thus stop unlawful orders from being issued in the first place. Indeed, in a few instances the Supreme Court has examined the legal advice the military received and ruled that it was unlawful. With this background in mind, Goren argues that there is a justification to refuse to serve so long as the government is promoting its reform because such refusal would lead to the overhaul plan to fail and thus to the survival of robust legal scrutiny. Groen explained that as long as potent legal scrutiny is still in place, a pilot must obey orders unless a “true black flag fly above the order…overwhelming the pilot’s consciousness.”
These two op-eds reveal the growing problem the Netanyahu government currently faces in using Israel’s security forces while promoting its constitutional overhaul. But between the lines, they expose inherent tensions in the legal defense of obeying superior orders that result from the central role of legal advisors in clearing military operations.
Who Determines if an Order is Manifestly Unlawful?
The discussion over the legality of the May 9 order was conducted using two distinct paradigms: the law of war and criminal law. The law of war paradigm puts the proportionality doctrine, which is a staple of international humanitarian law (IHL, or the law of armed conflict), at the center of examining the legality of the May 9 order. This paradigm was present in Bachar’s op-ed and prominent in the comments made by international law scholars who reacted to his op-ed.
However, the criminal law paradigm was also prominent in the discussion because of the centrality of the manifestly unlawful order doctrine. This doctrine is part of the criminal defense of obeying superior orders, which relieves soldiers of criminal liability for violating the law when they act in compliance with an obligatory order of a competent authority. The defense applies if an order is not manifestly unlawful. In other words, soldiers are expected to disobey manifestly unlawful orders. This structure of the defense exists in many national legal systems and was adopted in Article 33 of the International Criminal Court’s Statute.
On its face, there is a clear connection between the two paradigms. If an order is unlawful according to the IHL paradigm, then the issue of its manifest unlawfulness may arise. But at this point the difficulty is exposed: the IHL paradigm offers tests (such as the rules around distinction, proportionality, and targeting) that are based on legal reason while not all criminal law tests are based on reason. Although military lawyers who give clearance to orders are mainly interested in the IHL paradigm and the legal reasoning it brings, combatants mainly see orders through the criminal law paradigm and the manifestly unlawful doctrine.
According to the criminal law paradigm, the first reading of the manifestly unlawful doctrine is based on legal reason: “manifestly unlawful” means that the order is clearly outside the realm of legality. An order by a Colonel to her driver (who is a soldier under her chain of command) to drive 20 km above the 50 km speed limit to reach a routine activity on time is clearly unlawful and subsequently manifestly unlawful. According to this reading, lawyers’ expertise in the law gives them a clear advantage in identifying manifestly unlawful orders.
The second reading interprets “manifestly unlawful” as morally repulsive. This reading detects the “manifestly unlawful” order according to an emotional reaction, a gut-feeling. Since the Kafr Qasim judgment, Israeli courts have described this feeling by relying on the metaphor of an order that “pierces the eye.” The order to drive 20 km above the speed limit does not pierce the eye. However, the order at issue in the Kafr Qusim judgment – to kill innocent people who returned to their village from work because they violated a curfew that had been announced without their knowledge – does “pierce the eye.” Under this reading of the doctrine, lawyers, and their specialized legal training, have no advantage in identifying manifestly unlawful orders.
In his op-ed, Goren relies on both readings of the doctrine. According to his view, in most operations, the pilot is relieved of contemplating the legality of the order as lawyers examined the order for its legality in accordance with the first test. Lawyers who scrutinize the order determine whether it is lawful and that is the end of it. Lawyers may have had difficulties and dilemmas in giving clearance to an order but once such an order passed their scrutiny and went through the chain of command, no further contemplation is required from the pilot. However, in exceptional cases, even with lawyers scrutinizing the order, Goren agrees that the pilot’s eye may be pierced by an order’s repulsive nature making it manifestly unlawful.
As I explained elsewhere, in a reality in which legal “clearance” has become part of the routine of aerial attacks, the tension between these two readings creates difficulties. If pilots routinely rely on legal scrutiny by lawyers, is it at all possible anymore that their eye would be pierced in exceptional cases? The process in which each unit has its own domain of responsibility has created a diffusion of responsibility that allows each soldier in the chain to avoid seeing herself as responsible for the entire operation. The intelligence officer merely gives the information needed; the lawyer merely approves the legality of the attack plan; the squad commander merely briefs the pilot; and the pilot merely shoots the missile. The final “product” is divorced from the different phases, and each actor has the ability to disassociate herself from the killings. Research shows that the creation of this type of “assembly line” process in which each unit is responsible to a certain aspect of the result is a recipe for crimes of obedience.
Combatants feel absolved of the responsibility to consider the legality and morality of orders when they are instructed that lawyers are designated with the role of examining the legality of orders. Moreover, as unmediated human gaze of the battlefield has become rarer with modern technology, the disassociation of the perpetrator from his victims has become easier. In a reality in which drone-operators speak of targeting human beings in terms of videogames, it may be that the entire notion “piercing of the eye” has become obsolete.
Moreover, the tension between the two readings of the manifestly unlawful doctrine is exacerbated when it comes to autonomous weapon systems (AWS). Eyal Benvenisti and Eliav Lieblich argue that the entrance of AWS would create a dangerous radical change because soldiers are currently under “administrative-legal duty to exercise constant discretion” while autonomous weapons cannot exercise such discretion. As I argued elsewhere, this notion is mistaken. Soldiers currently are not legally allowed to disobey an order based on exercising constant discretion regarding the factual basis and merits of the order as required in “proper administrative discretion.” As Joseph Raz showed, the concept of an order was created to encapsulate the idea that when given an order, a soldier is not merely given a reason to do something that competes with other reasons for and against the action. Rather, he is given an exclusionary reason – a reason that excludes all other reasons – to act in the way he was ordered to act. In this manner, he is negated from re-reconsidering all the underlying reasons that led to the order being issued. If a soldier can simply re-examine based on administrative law doctrines the merits of the order or the process in which it was given, then we are not dealing with an order.
The defense of obeying a superior order means that currently soldiers function as AWS in terms of their inability to apply administrative law type of discretion every time an order is given, and Goren’s op-ed demonstrates this reality. What soldiers have, and AWS lack, is a “gut feeling” of repulsion in face of certain orders. However, those who entrust the determination of whether an order is manifestly unlawful solely in the hands of lawyers undermine soldiers’ ability to refuse orders based on their gut-feeling as they entrust the ability to raise black flags solely to those with legal training and based on the first understanding of the test.
While the manifestly unlawful order doctrine was created as an answer to claims such as those raised by the Nurnberg trials defendants who argued that “we were just following orders,” the realities of the 21st century may require an answer to the claim “the killings by soldiers or AWS was a result of following orders that were approved as legal by lawyers who claimed to be applying international humanitarian law.”
Taking the decision of whether an order is manifestly unlawful away from combatants and trusting it in the hands of lawyers is part of the juridification of war. The debate on whether such juridification helps or hinders the advancement of human rights is an ongoing one in Israel and globally. David Kretzmer and Yaël Ronen argue in their book “The Occupation of Justice” that the involvement of the Israeli Supreme Court in scrutinizing the legality of Israel’s occupation helped legitimate it and thus may have even prolonged it. My argument is different and aims to show that in the name of advancing human rights obligations, the juridification of the process of ordering airstrikes has created an inhuman system in excluding the pilot’s eye from the decision of whether an order is manifestly unlawful.
This juridification helps to legitimate orders in the eyes of pilots, but it also does much more. It is part of a brave new future in which AWS may operate based on legal clearance without giving room to part of what makes us human. While we all encounter in our daily lives how moving to automated systems by service providers often creates a sense that we as humans are not seen any more, in wars the effect of this process is lethal. It is lethal not because it is less legal, but because human beings with gut-feelings are excluded from the decision-making process.