The Uniform Code of Military Justice (UCMJ) addresses unlawful orders primarily under Articles 90 and 92. Article 92 criminalizes failure to obey lawful orders but clarifies that orders are presumed lawful unless they are contrary to the Constitution, laws of the United States, or beyond the issuing authority’s power. A service member must obey lawful orders, but they also have the right and sometimes the duty to refuse unlawful orders, especially those that require committing a clear criminal act. Disobedience of an unlawful order does not automatically absolve a service member of responsibility, and challenging the lawfulness of an order is often resolved by a military judge post hoc. Refusing to obey an unlawful order carries risk, as disobedience of orders later proven lawful can lead to severe penalties under the UCMJ.
Definition and Criteria for Unlawful Orders
Unlawful orders are those that contravene the U.S. Constitution, federal law, or international law (such as the Geneva Conventions), lack legitimate military purpose, or are abusive in nature. Orders demanding commission of war crimes, torture, discrimination, or other illegal acts fall under this category. Legal guidance emphasizes that service members should only follow orders that have a valid military purpose and do not conflict with higher authority laws or rights.
Legal Duty and Risks
Service members have a legal duty to obey lawful orders but also a constitutional right and sometimes a duty to refuse unlawful commands. However, refusal must be approached cautiously through appropriate legal channels whenever the lawfulness is in doubt, to avoid criminal charges for disobedience. Orders are presumed lawful until proven otherwise, typically in military legal proceedings. This balance is critical to maintaining military discipline while protecting individual rights.
Relevant UCMJ Articles
- Article 90: Addresses willful disobedience of a superior commissioned officer and prohibits orders without valid military purposes that interfere with private rights.
- Article 92: Covers failure to obey lawful orders, outlining that an order is lawful unless it violates constitutional or federal laws or is issued without authority. It also governs consequences for both obeying unlawful orders and refusing orders.
Practical Guidance
When confronted with questionable orders, service members are advised to seek legal counsel or use formal complaint channels rather than immediate refusal, except in cases where the order clearly mandates an illegal act. Ignoring or disobeying orders that later prove necessary can lead to disciplinary measures, including court-martial.
