CREATORS: Obeying an Unlawful Order is Not a Defense

Matthew T. Mangino
CREATORS
February 17, 2026

Befehlsnotstand is a word worth noting. The word is of German origin. The legal term refers to soldiers who obey illegal orders because they are afraid of the consequences if they do not obey. The defense didn't work in Nuremberg after World War II and won't work today.

In a weird twist on the concept of befehlsnotstand, last fall, Sen. Mark Kelly and five other Democratic lawmakers released a video advising U.S. military personnel that they "can refuse illegal orders."

Kelly was joined by Senator Elissa Slotkin and Reps. Jason Crow, Chrissy Houlahan, Maggie Goodlander, and Chris Deluzio — all with military or intelligence backgrounds.

They emphasized, "Our laws are clear. You can refuse illegal orders," while urging troops to uphold their oath to the Constitution. This statement came amid concerns regarding potential unlawful orders by the Trump administration, particularly from Secretary of War Pete Hegseth.

This comes into focus, yet again, as the Trump administration, through the U.S. military, carried out another deadly strike on a vessel accused of trafficking drugs in the Caribbean Sea.

According to ABC News, the U.S. Southern Command announced that the boat "was transiting along known narco-trafficking routes in the Caribbean and was engaged in narco-trafficking operations." It said the strike killed three people. A video linked to the post shows a boat moving through the water before exploding in flames.

This most recent attack raises the death toll from the Trump administration's strikes on alleged drug boats to 133 people in at least 38 attacks carried out since early September in the Caribbean Sea and eastern Pacific Ocean.

Under both U.S. and international law, it is flagrantly illegal to use the military to kill civilians suspected of only crimes. The United States is not in an armed conflict with anyone in Latin America. That means the people on these boats are civilians. Civilians, including those suspected of smuggling drugs, are not lawful targets.

The Trump administration countered by saying the cartels behind the drug trafficking are terrorists and, therefore, the attacks are legal. The Justice Department's Office of Legal Counsel (OLC) has issued a "secret" memo to legally justify the US military's strikes on these boats and their occupants.

This memo reportedly details the Trump administration's legal reasoning. Initially, the strikes are lawful because the United States is in an "armed conflict" with unspecified drug cartels, and the officials who have authorized or carried out these strikes should not be prosecuted for murder or other crimes, reported the American Civil Liberties Union. Even as legal experts from across the political spectrum have challenged these claims, the administration has refused to release the OLC memo or any related records.

To complicate things even further, on at least one occasion, two survivors of a boat attack, considered shipwrecked, were killed by a second attack. In addition, reports from January indicate that the U.S. military has used disguised aircraft, designed to look like civilian planes, to attack suspected drug-smuggling boats in the Caribbean. This tactic has raised serious legal and ethical questions regarding "perfidy," which is considered a war crime under international law, according to The Guardian.

Under Article 92 of the Uniform Code of Military Justice (UCMJ), service members are legally obligated to obey only lawful orders. According to the military website MyBaseGuide.com, an illegal order is a directive that violates a law, regulation, or the Constitution.

Examples of illegal orders include committing a crime, engaging in unethical acts, or violating human rights standards. The UCMJ requires military personnel to disobey patently illegal orders, such as those directing war crimes or "targeting civilians."

International Courts have established that befehlsnotstand is not a defense. The defense was unsuccessful for senior members of Adolph Hitler's leadership during the post-World War II Nuremberg trials and likely would be unsuccessful today.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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The President is getting away with murder, literally

During his first presidential campaign Donald Trump famously claimed that he could “stand in the middle of Fifth Avenue and shoot somebody” and not lose any voters. At the time it felt like an empty boast. No more, writes David Cole in The New York Review of Books.

Between September 2 and September 19 the US military, acting on President Trump’s orders, bombed three boats traveling in international waters, reportedly killing seventeen civilians in cold blood. Ordinarily when US armed forces kill civilians, the president does not brag about it, yet Trump is apparently so proud of the executions that he posted video footage of them on Truth Social. And while ordinarily the killing of any civilian prompts investigations and apologies, in this instance the administration has promised only that there are more to come. “To every terrorist thug smuggling poisonous drugs into the United States of America,” Trump said during his speech at the UN General Assembly on September 23, “please be warned that we will blow you out of existence.”

There was no conceivable legal authority for these killings. We are not at war with drug traffickers. The “war on drugs” is a metaphor, not a legal term of art that authorizes killing the “enemy.” The human beings on these boats were civilians, and even if there were an actual war going on, the laws of war prohibit targeting civilians unless they are directly engaged in hostilities. Even if the boats’ occupants were, as the administration alleges, carrying illegal drugs, that offense would at most have authorized their arrest, trial, and, if convicted, incarceration for a period of years. It would not authorize the death penalty, much less their summary execution without trial.

Trump has called the dead “narcoterrorists” and has asserted that the eleven killed in the first strike were associated with the Venezuelan gang Tren de Aragua, a “foreign terrorist organization.” But that designation authorizes only economic sanctions against the group, such as freezing their assets, and criminal penalties against Americans who do business with them. It does not authorize any use of military force, much less the intentional lethal targeting of civilians.

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A legacy of honor: Today marks the 83rd anniversary of the attack on Pearl Harbor

Only 16 Pearl Harbor survivors remain. Read their stories of heroism on CNN

ICC members support arrest warrants for Netanyahu and Hamas leaders

 Ninety-three member states of the International Criminal Court (ICC) declared their “unwavering support” for the court to independently carry out its professional duties, in a joint statement reported Jurist. The statement comes after several ICC members have been threatened, particularly ICC Prosecutor Karim Khan after he declared to seek arrest warrants against Israeli Prime Minister Benjamin Netanyahu as well as three Hamas leaders.

In the statement, the member states of the Rome Statute contended that the court, together with its officials and staff, is an independent and impartial judicial institution and should act unhindered and without intimidation. They also called on all countries to cooperate fully with the court to enforce its mandates. The member states believe that by stating their support, the ICC can continue contributing to the end of impunity for international crimes and the prevention of the recurrence. The statement also seeks to promote the respect of international law.

The Rome Statute of the ICC provides for the establishment of the court, its international personality and the jurisdiction the court possesses. Upon becoming a party to the Rome Statute, the state party accepts the court’s jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes and the crime of aggression. In May and August 2002, the US and Israel expressed their intention not to become a party to the statute respectively even though they both became signatories in 2000.

Accordingly, the US disputed whether the ICC possesses legitimate jurisdiction over the US or Israel. 12 US senators in April threatened to sanction Khan if the ICC prosecutors attempt to assert its jurisdiction by any means against the US and its allies. Netanyahu also called on the international community to prevent the court from issuing warrants, thereby undermining Israel’s inherent right of self-defense.

Following the announcement of the warrant applications on June 4, the US House of Representatives passed a bill compelling the US President to impose sanctions on the ICC and the related prosecutors through visa restrictions and property freezes. Joe Biden has so far opposed the bill. However, the speaker of the house Mike Johnson maintained that the ICC’s decision fell outside its jurisdiction and stated that Israel is respecting the rule of law.

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Israel may has acted inconsistently with international humanitarian law

A US Department of State report summary claims that Israel may have used US-provided weaponry in an “inconsistent” manner with international humanitarian law (IHL) obligations but could not conclude whether US weaponry was used in specific incidents, reported Jurist.

The State Department’s NSM-20 report acknowledged that the US government received allegations of Israeli IHL violations since Hamas’ October 7 attacks from “[c]redible UN, NGO, and media sources.” Further, the State Department wrote that “certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.”

However, the State Department could not assess whether US weaponry was used in specific high-profile incidents, such as the Israeli attack on a World Central Kitchen convoy that killed seven humanitarian workers. The US reported that Israel’s information sharing regarding the use of US weapons has been limited and claimed that Hamas’s tendency to embed themselves in civilian populations makes it difficult to ascertain whether individual strikes violate international law.

Despite expressing concerns about Israel’s “action and inaction” that hampered the delivery of humanitarian aid into Gaza, the US acknowledged that Israel made steps such as opening the Kerem Shalom border crossing to allow more aid into the enclave. Thus, the US did not conclude that Israel is “prohibiting or otherwise restricting the transport or delivery of [US] humanitarian assistance” to Gaza.

The NSM-20 report also described the compliance of US partners Colombia, Iraq, Kenya, Nigeria, and Ukraine with IHL, concluding that, while Iraqi, Kenyan, Nigerian and Ukranian security forces may have been involved in human rights violations, no US weaponry sent to those countries was used in such breaches.

The Israel-Hamas conflict has drawn international scrutiny for its impact on civilians in both Israel and Gaza. Following Hamas’s October 7 attacks where more than 1,100 Israelis were killed and more than 250 taken hostage, Israel launched an offensive on Gaza that has reportedly led to the death of 30,000 Palestinians. In January, the International Court of Justice (ICJ) ordered Israel to take “all measures within its power” to prevent breaches of the Genocide Convention in Gaza following a complaint by South Africa. Then in March, the ICJ directed Israel to take all necessary measures to ensure the flow of humanitarian aid into the enclave.

Israel carried out strikes on the Gazan city of Rafah on Monday amid international concerns that Israel may invade the city, where 1.4 million people are sheltering.

US President Joe Biden issued memorandum NSM-20 in February, requiring the Departments of State and Defense to produce reports for various congressional committees describing whether US weapons and defense services are being used in compliance with IHL.

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