Gavin Howe
Military personnel are generally required to obey lawful orders from their superiors. The Uniform Code of Military Justice (UCMJ) in the US, for example, specifies that service members must obey the lawful orders of his/her superior. However, an order must meet certain criteria to be considered lawful. For instance, it must pertain to military duty, be reasonably specific, and not conflict with statutory or constitutional rights. If an order is deemed unlawful, there may be consequences for both the subordinate and the superior giving the order. While a subordinate may face punishment for disobeying a lawful order, they may also face consequences for obeying an unlawful order. Therefore, it is crucial for military personnel to understand their rights and seek legal guidance when dealing with questionable or unlawful orders.
| Characteristics | Values |
|---|---|
| Nature of the order | Must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty |
| Order issuer | Military superior or senior officer |
| Order receiver | Military service member |
| Order legality | Orders are presumed to be lawful, and the accused is responsible for rebutting the presumption |
| Order execution | If the execution of a military order violates criminal law, the superior officer giving the order will bear the sole responsibility |
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What You'll Learn
Orders from superior officers
The military is a hierarchical organisation that relies on a degree of obedience to the orders of superior officers for its functioning. In a military context, the chain of command refers to the line of authority and responsibility along which orders are passed within a military unit and between different units. Each member of the hierarchy has one and only one superior, precluding the possibility of contradictory orders.
In the US military, a service member must obey an order from a superior officer if the order is lawful. However, if complying with an order would require the commission of a crime, the order is unlawful and must be disobeyed. The Uniform Code of Military Justice (UCMJ) specifies that service members are required to obey "the lawful orders of his/her superior". While a service member can be court-martialled for disobeying a lawful order, they can also potentially face court-martial for obeying an unlawful order.
In certain circumstances, a subordinate who obeys an unlawful order may share the punishment of the superior officer who gave the order. For example, the German Military Code provides that if the execution of a military order violates criminal law, the subordinate will share the punishment if they exceeded the order or if they knew that the order concerned an act intended to commit a civil or military crime.
It is important to note that orders are presumed to be lawful, and the burden of proof for unlawfulness falls on the defendant. In the case of questionable orders, it is crucial for service members to understand their rights and seek legal guidance.
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Orders that are unlawful
In the United States, the Manual for Courts-Martial provides guidance on interpreting the UCMJ. Rule 916(d) of the Manual states that it is a defense to any offense that the accused was acting pursuant to orders unless the accused knew or should have known the orders to be unlawful. This rule was used to convict Lt. William "Rusty" Calley, who ordered the killing of civilians in the My Lai massacre in Vietnam.
Other examples of unlawful orders include those that are vague, overly broad, or intended to harass or humiliate a service member. An order that has a private end for its sole object is also unlawful. For instance, in United States v. Milldebrandt, an order to report financial conditions unrelated to the military while on leave was found to be unlawful. Additionally, orders extending punishments beyond those lawfully imposed are illegal. In United States v. McCoy, continuing extra duty after the completion of punishment under Article 15 was deemed unlawful.
It is important to note that the determination of whether an order is unlawful can be complex, and service members facing such situations should seek legal guidance to understand their rights and protect themselves from potential consequences.
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Orders that require commission of a crime
In the US military, a service member must obey an order from a superior officer if the order is lawful. However, if complying with the order would require the service member to commit a crime, the order is unlawful and must not be obeyed. The German Military Code also states that if the execution of a military order in the course of duty violates criminal law, the superior officer giving the order will bear sole responsibility.
The Uniform Code of Military Justice (UCMJ) specifies that service members are required to obey "the lawful orders of his/her superior". While a service member can be court-martialled for disobeying a lawful order, they can also potentially face court-martial for obeying an unlawful order. It can be impossible to determine whether an order is lawful in the moment, particularly in the heat of battle.
In the case of U.S. vs Jones, the defendants pleaded that they were only obeying the orders of their captain. Circuit Justice George Washington answered this plea by stating, "No military or civil officer can condemn an inferior to violate the laws of his country; nor will such a command excuse, much less justify the act."
In another instance, Lt. Gen. Ricardo Sanchez, the commander of U.S. forces in Iraq, authorized the use of dogs, sleep deprivation, and extreme temperature exposure as interrogation techniques. These techniques were not permitted by the Army Field Manual in place at the time, making his order illegal. The soldiers involved in the scandal tried to assert superior orders as a defence, but none were successful.
In March 1968, 2nd Lt. William "Rusty" Calley conducted a raid of a hamlet called My Lai in Quang Ngai Province, Vietnam. Calley ordered his men to round up the remaining civilians, herd them into a ditch, and gun them down. Calley defended his actions by stating that his company commander, Capt. Ernest Medina, had ordered him to kill "every living thing" in My Lai, telling him there were no civilians there, only Viet Cong. Calley was court-martialled for his actions and charged with 22 counts of murder.
In summary, while orders are presumed to be lawful, service members must scrutinize them to ensure they do not require the commission of a crime or violate any other laws. If an order is found to be unlawful, it must be disobeyed, and the service member may face legal consequences for obeying it.
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Lawful orders and their consequences
Obedience to lawful orders is a cornerstone of military discipline and effectiveness. In the US military, service members are required to obey lawful orders from superior officers. A lawful command is an order that does not go against the law, regulations, or a service member's rights. It must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty.
Articles 90 and 92 of the Uniform Code of Military Justice (UCMJ) outline the consequences of disobeying lawful orders. Article 90 makes it a crime for service members to willfully disobey a lawful command from a superior commissioned officer. On the other hand, Article 92 covers a broader range of disobedience, including failing to obey any lawful general order, regulation, or command from a member of the armed forces, as well as dereliction of duty.
The penalties for violating Articles 90 and 92 can be severe and include both judicial and non-judicial punishments. These can range from reprimands and extra duties to confinement and dishonorable discharge. A conviction under these articles can also result in a federal felony charge, which can have long-term consequences on a service member's life and ability to find civilian employment.
It is important to note that soldiers are not required to obey unlawful orders, particularly those that require the commission of a crime. While soldiers may face consequences for disobeying unlawful orders, they can also face punishment for carrying out unlawful actions. In such situations, it is crucial for service members to understand their rights and seek legal guidance to protect themselves.
Determining whether an order is lawful or unlawful can be challenging, especially in the heat of battle. As seen in the case of Lieutenant William Calley during the Vietnam War, unlawful orders from a superior officer do occur. Calley ordered his men to kill hundreds of unarmed Vietnamese civilians, resulting in a court-martial and a conviction for first-degree murder.
Ultimately, the consequences of disobeying or obeying lawful and unlawful orders in the military can be significant. Service members must navigate a complex landscape of regulations, rights, and obligations while making rapid decisions with potentially far-reaching implications.
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The Uniform Code of Military Justice (UCMJ)
The UCMJ outlines a distinct set of laws for military personnel, who are also required to follow the laws of the United States and their host countries during peacetime under international treaties. Additionally, some civilians who provide military support during wartime may be subject to the UCMJ. The code applies to all branches of the armed forces, including the Army, Marine Corps, Navy, Air Force, Space Force, Coast Guard, NOAA Commissioned Officer Corps, and Public Health Service Commissioned Corps.
The UCMJ has various "articles" that specify legal infractions and their corresponding punishments. For example, Article 92 addresses "Failure to Obey an Order or Regulation," while Article 129 pertains to "Burglary." The code also includes a "General Article" (Article 134) that covers any crimes not explicitly listed, such as "all disorders and neglects to the prejudice of good order and discipline in the armed forces."
According to the UCMJ, service members are mandated to obey the lawful orders of their superiors. However, if carrying out an order would entail committing a crime, the order is deemed unlawful and must be disobeyed. While court-martial proceedings can be initiated for disobeying a lawful order, one may also face legal consequences for obeying a clearly unlawful order. Therefore, it is crucial for service members to recognise the distinction between lawful and unlawful orders and understand their rights in such situations.
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Frequently asked questions
Only a military superior can give a lawful order. In the US, the Uniform Code of Military Justice (UCMJ) specifies that service members are required to obey “the lawful orders of his/her superior”.
Firstly, the soldier must recognise whether the order is actually unlawful or simply one with which they disagree. If an order requires the soldier to commit a crime, the order is unlawful and must be disobeyed. However, the burden of proof for unlawfulness is on the defendant.
Depending on the circumstances, disobedience of a lawful order can lead to the death penalty in times of war and confinement for up to five years in peacetime. Other sanctions include loss of pay, dishonourable discharge, and other punishments.
A lawful order must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty. Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful.
