Introduction
A military order is the bedrock of any army, yet history and law prove that obedience cannot be absolute. This article analyzes the limits of hierarchy, from 15th-century trials to the dilemmas of the algorithmic era. Readers will learn how a soldier's criminal responsibility has evolved, what the "black flag" doctrine entails, and which mechanisms can protect an individual from becoming an instrument of crime. It is a case study where law meets the moral imperative.
The Evolution of Responsibility: From Hagenbach to the Rome Statute
The belief that Nuremberg "invented" responsibility for criminal orders is a myth. As early as 1474, the trial of Peter von Hagenbach rejected the argument of following a sovereign's orders, appealing instead to universal divine laws. Over centuries, the doctrine evolved: from the 19th-century principle of full responsibility for officers in the US, through a brief regression toward respondeat superior (superior responsibility), to the Nuremberg standard. The latter established that acting under orders may only mitigate punishment but never absolve guilt.
Today, Article 33 of the Rome Statute is pivotal. It regulates the issue of obedience, allowing the "superior orders" defense only if three conditions are met: a legal obligation to obey, lack of knowledge that the order was unlawful, and the absence of manifest illegality. The Statute closes the debate regarding genocide and crimes against humanity—these are by nature manifestly unlawful, eliminating the possibility of hiding behind hierarchy.
The "Black Flag" Doctrine and the Banality of Evil in the Laboratory of Philosophy
A military order serves as a unique laboratory for the philosophy of law, blending Hans Kelsen’s theory of norms with real-world action. In Israel, the "black flag" doctrine emerged—a symbol of manifest illegality that every soldier must recognize. If a "black flag flies" over an order (e.g., the execution of civilians), refusal becomes a legal duty rather than an act of heroism. This serves as a counterweight to the "banality of evil" described by Hannah Arendt, where bureaucracy and procedures mask mass atrocities.
Legal cultures approach this dilemma differently. In the UK, the central figure is the "reasonable person" assessing the facts; in Germany, the Radbruch Formula allows for the rejection of laws that are "intolerably unjust"; and in the US, the reflex regarding an unlawful order is embedded in the training system. All these models share a common axiology: the recognition that certain values (dignity, life) stand above discipline. The tragedy of a soldier's situation, according to A. V. Dicey, lies in the fact that they may be punished by a military court for disobedience or by a civilian court for carrying out an illegal order.
Modern Challenges: Algorithms and Protection Mechanisms
Lessons from My Lai, Abu Ghraib, and Nangar Khel show that hierarchy often strips individuals of their conscience. Today’s challenge is algorithmization—where a system identifies a target and the soldier merely authorizes the strike. To prevent the dilution of responsibility, the human in the loop principle and transparent audits of machine decisions are essential. Technology must not become a new "invisibility cloak" for crimes.
Practical protection against unlawful orders requires implementing specific safeguards:
- "Legal pause" procedure – the right to halt an order for verification by an independent officer.
- Illegality recognition matrix – a simple checklist (torture, civilians, looting) for every soldier.
- Whistleblower shield – statutory protection for those who refuse to carry out criminal commands.
Conclusion
Within the labyrinth of orders and regulations lies an eternal moral dilemma: can we sacrifice our humanity in the name of order? The true strength of a hierarchy lies not in blind drill, but in its capacity for self-correction and the ability to say "no" in the face of manifest evil. Responsibility for one's actions never vanishes upon putting on a uniform, and natural law remains the ultimate verifier of every command.
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