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18.3.2 Refuse to Comply With Clearly Illegal Orders to Commit Law of War Violations.Members of the armed forces must refuse to comply with clearly illegal orders to commit law ofwar violations. In addition, orders should not be construed to authorize implicitly violations oflaw of war.18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations. Therequirement to refuse to comply with orders to commit law of war violations applies to orders toperform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal.For example, orders to fire upon the shipwrecked would be clearly illegal. 25 Similarly, orders tokill defenseless persons who have submitted to and are under effective physical control wouldalso be clearly illegal. 26Subordinates are not required to screen the orders of superiors for questionable points oflegality, and may, absent specific knowledge to the contrary, presume that orders have beenlawfully issued. 2725 Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle” (Second CriminalSenate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922) (“It iscertainly to be urged in favor of the military subordinates, that they are under no obligation to question the order oftheir superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such anorder is universally known to everybody, including also the accused, to be without any doubt whatever against thelaw. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the presentinstance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing elsebut a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter hasstrikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the casehere. They quickly found out the facts by questioning the occupants in the boats when these were stopped. Theycould only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry outa breach of the law. They should, therefore, have refused to obey.”).26 United States v. Calley, 22 U.S.C.M.A. 534, 543-44 (C.M.A. 1973) (“In the stress of combat, a member of thearmed forces cannot reasonably be expected to make a refined legal judgment and be held criminally responsible ifhe guesses wrong on a question as to which there may be considerable disagreement. But there is no disagreementas to the illegality of the order to kill in this case. For 100 years, it has been a settled rule of American law that evenin war the summary killing of an enemy, who has submitted to, and is under, effective physical control, is murder.”).27 United States v. von Leeb, et al. (The High Command Case), XI TRIAL OF WAR CRIMINALS BEFORE THE NMT510-11 (“Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders areissued to be carried out. Its discipline is built upon its principle. Without it, no army can be effective and it iscertainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionablepoints of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the statewhich he serves and which are issued to him are in conformity with international law. … He has the right topresume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properlydetermined before their issuance. He cannot be held criminally responsible for a mere error in judgment as todisputable legal questions.”); WINTHROP, MILITARY LAW & PRECEDENTS 296-97 (“But for the inferior to assume todetermine the question of the lawfulness of an order given him by a superior would of itself, as a general rule,amount to insubordination, and such an assumption carried into practice would subvert military discipline. Wherethe order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior hasproceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule ofobedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit ofno rational doubt of their unlawfulness. Except in such instances of palpable illegality, which must be of rareoccurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and inobeying it can scarcely fail to be held justified by a military court … .”).1058