Understanding Unlawful Orders in the Military

An unlawful order is a directive given to a soldier that violates the fundamental principles of warfare and international law. These principles are deeply ingrained in military training and ethics. The most prominent of these is the Geneva Conventions, which provide a set of rules to limit the horrors of war and protect persons who are not or are no longer participating in hostilities. An order that infringes upon these rules is undoubtedly unlawful.

The Duty to Protest Unlawful Orders

According to the International Code (Rule 154), every combatant has the duty to refuse a blatantly unlawful order. This principle underpins the idea that soldiers must not only follow orders but ensure that those orders are in accordance with the law. Failure to protest an unlawful order can result in complicity in war crimes, which may have dire consequences, both legally and morally.

For instance, in the case of Lt. William Calley during the Vietnam War, the courts provided a significant lesson. Targeting civilians who pose no threat or killing enemy combatants who have fully surrendered is never acceptable. The court's findings serve as a guiding light for soldiers, emphasizing the importance of ethics and intention in military actions.

Legal and Ethical Frameworks

The United States Military has a specific legal framework, the Uniform Code of Military Justice (UCMJ), which serves as the cornerstone for military law. UCMJ 92 specifically addresses the issue of disobeying orders. It states that penalties apply to disobeying lawful orders, but there is no penalty for disobeying an unlawful order. This legal principle aligns with the moral imperative to uphold justice and protect the rights of all individuals, even those in conflict.

Moreover, the oath of enlistment also plays a crucial role in defining a soldier's duty. The Oath of Enlistment states:

I _____ do solemnly swear or affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic that I will bear true faith and allegiance to the same and that I will obey the orders of the President of the United States and the orders of the officers appointed over me according to the regulations and the Uniform Code of Military Justice. So help me God.

Here, 'obey the orders of the officers appointed over me according to the regulations and the UCMJ' encompasses the duty to disobey unlawful orders. Soldiers are required not only to follow orders but to ensure that these orders are lawful. This is a significant protection against unlawful directives.

Lines of Command and Reporting Unlawful Orders

When faced with an unlawful order, soldiers are not only permitted but duty-bound to report the order. The chain of command ensures that the order can be reconsidered and, if necessary, corrected. For instance, if a Junior Lieutenant (2LT) issues an unlawful order, a Senior Noncommissioned Officer (SNCO) might first ask for clarification on the young officer's intent. This process accomplishes two important things:

It signals to the 2LT that the SNCO is uncomfortable with the order and does not consider it lawful. It gives the 2LT a chance to reconsider and potentially retract the order, understanding the SNCO's concerns.

If the order remains unaltered and the SNCO still believes it to be unlawful, they are morally and legally required to refuse to follow the order. This refusal should then be reported up the chain of command. By doing so, the soldier maintains integrity and upholds the higher principles of military ethics and international law.

Conclusion

In conclusion, soldiers have a mandatory and moral duty to refuse unlawful orders. This is not merely a legal requirement but a fundamental responsibility of every combatant. By understanding and upholding the principles of military ethics and international law, soldiers ensure that their actions align with justice, humanity, and the protection of human rights.