Soldiers have a duty to follow legal orders and can be court martialed for failure to do so. They also have a duty to uphold the U.S. Constitution and International Law. When a commander, including the President of the United States, orders military personnel to target or intentionally harm civilians, soldiers and their commanders are required by law to disobey.* This principle was established in the Nuremberg trials, where obeying orders was not a defense to charges of war crimes. It was subsequently codified in international and U.S. law. It has been applied in international war crimes trials, such as those at the International Criminal Tribunal for the Former Yugoslavia.
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I was working in the former Yugoslavia during the war in Kosovo/a. Serbia's war against the Kosovo Albanians was largely directed against the civilian population in an attempt to drive them out of the province. Homes were burned, crops destroyed, people raped, tortured, and massacred. Some young Serbs and Montenegrins refused to fight. One soldier got into his tank and drove it to Belgrade where he parked it on the Parliament steps. In another situation, a whole platoon refused to fight. They started walking home. Their commanding officer demanded that they leave their guns behind. The young soldiers went one better. They took off their uniforms and set out walking in their underwear.
Parents did not know if their soldier sons had been deployed. A mother stood up among them and said, "Go to the barracks and retrieve your sons. Take them home with you." Another woman protested: "But they'll go to jail." The first mother answered: "They'll get out of jail, but never from the grave."
One of the soldiers who testified during the trial of Slobodan Milosevic said that he was never told about the Geneva Conventions and his obligation to disobey illegal orders. He and others were ordered to destroy a village. They'd burned between ten and fifteen houses before they discovered people. Fifteen women, children, and elderly men were forced out of their house at gunpoint and made to sit on the ground. One woman held an infant who was crying. The sergeant ordered the soldiers to shoot them all. The young soldier, who had asked to testify as a way to ease his conscience), obeyed.
"The people shot at began falling down one over the other. What I remember most vividly is how -- I remember this very vividly -- there was a baby shot with three bullets, screaming unbelievably loud." The baby's scream haunted the conscript for three and a half years and ultimately brought him to confront Milosevic: "I came forward to give my evidence because I wanted in this way to express everything that is troubling me, that has been troubling me for the past three years since I completed my service. Never a night goes by without my dreaming of that child hit by the bullets and crying. I thought if I came forward and told the truth, that I will feel easier in my soul. It is the only reason I am here."
Milosevic asserted that not a single officer ordered the soldier to kill civilians. He responded: "That is not correct. I heard this [order to not leave anyone alive] and also ten soldiers from my company can confirm it and in no way can you deny that. I was there. I heard it and . . . you, as Supreme Commander, could have come down there and seen what it was like for us. You were issuing shameful orders to be carried out." pp 90-91, Twilight of Impunity: The War Crimes Trial of Slobodan Milosevic.
I joined other Portlanders this week at the ICE facility near the waterfront for a singing protest. It was powerful and moving. As I sang the songs I learned 60 years ago, I hid my face behind my song sheet to keep my tears from erupting into belly-wrenching sobs. One song was adapted from protests in Belgrade, when protesters invited police to join them. Though none of the Portland ICE agents accepted the invitation, in Belgrade the police did. They moved to join the protesters, refusing to protect Milosevic any longer. Shortly after, he was arrested, then sent to The Hague to stand trial before an international tribunal for genocide, crimes against humanity, and war crimes. Though Milosevic died before a verdict could be rendered, he died ignominiously in a jail cell.
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*Ordering troops to engage in illegal conduct is a war crime.