When Is an Order Unlawful?

You are a young lieutenant. 

You are ordered to take out a machine-gun emplacement on a hill. 

You lead your men up the hill to the emplacement. 

The enemy has lined up women and children in front of the machine gun.  You decide you will not shoot the innocent civilians. 

When you get back to your superior officer, he tells you that you have flunked the test.

That’s a true story, told to me by my friend, retired Lt. Col. John Nix,  who served as an  attorney in the Judge Advocate General’s Corps.  He was that young lieutenant – well, he was actually an R.O.T.C cadet pretending to be a lieutenant for that exercise.   He was informed by his instructor that it is a lawful order to shoot innocent civilians if they block your target.

Naturally, this conversation was triggered by the story about the  apology for his role in the My Lai massacre by former Army Lt. William Calley.  ” The difference,” he said, “is that you could not say herding innocent civilians into a ditch and killing them was removing shields that were in front of a target.”

Calley’s defense all along has been that he was following orders.  That was denied by his superior officer.  If Calley’s assertion had been determined right,  he would still have had the problem of following an unlawful order.   

John  Nix says whether an order is lawful or not can end up in a courtroom dispute.  He warns that if a soldier decides not to follow one, he had better be right because the consequences can be dire.  However, the consequences of following an illegal order can also be dire.

According to About.com, the Manual for Courts-Martial says, “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.

Who decides whether an order is lawful or not? It’s certainly not the soldier who decided not to follow the order.  About.com puts it this way: “Ultimately, it’s not whether or not the military member thinks the order is illegal or unlawful, it’s whether military superiors (and courts) think the order was illegal or unlawful.”

Wonder how much, if any, training about whether an order is legal or not is given to the average soldier.  I never got any. When I was in basic training I was told just how horrible my life could be if I disobeyed an order.  Nobody ever said, that I can remember,  that I didn’t have to obey an unlawful order.  Maybe it’s different now.  I took basic training fifty-five years ago. 

Basic training graduation ceremony parade, National Infantry Museum, Ft. Benning/Columbus

Basic training class graduation ceremony parade, June, 2009, National Infantry Museum, Ft. Benning/Columbus, GA

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5 Responses to “When Is an Order Unlawful?”

  1. Stephen King Says:

    Murder is still murder!

  2. charleyjk4 Says:

    The British Philosopher,John Austin once described Law as a command.He would.He was a soldier.
    The military are inbued the instincts of order,obedience and respect.They do not care whether the order is moral or not.

    Have you watched “A few good men”.starring Tom Cruise and Demi Moore?.
    The officers charged with giving Santiago ‘code red’ knew that what they were doing was wrong but went ahead because it was a direct order from a superior officer.

  3. Duc Tran Van Says:

    Duc Tran Van
    Germany
    DUCTRANVAN@t-online.de

    Dear : William Calley

    I’m Duc Tran Van, living here in Germany since 1983. Almost one month ago, I’ve read from your newspaper about “William Calley”. He said, he felt sorry about the “My Lai massacre”, where over 504 People killed.

    We are survivors from the “My Lai massacre” at March 16 1968 in Thap Canh.
    At this time, I was 7, my older sister 9 years old and my youngest sister 14 months. During the gunfire my mother protected me, and my little sister in her fall, by lying beneath us. When the gunfire ended, and the Americans were away, my mother told me to run away immediately.
    Despite her injuries in her leg and stomach, my mother has dragged herself to the street to see us running away. So she had to see her other two daughters lying dead on the other roadside. I ran away from this place, carrying my sister. At about 2km away, I heard a helicopter. I threw myself with my sister on the ground, and we played dead. The helicopter flew so low that I could clearly see the photographer. After the helicopter was gone, I ran with my sister again. Approximately 4 hours later, we arrived Son Hoi. Interrupted by repeatedly having to hide, every time a helicopter noise was heard, and also having rests from the strain of carrying my 14 months old sister.
    The next morning my older sister also arrived there. She survived the massacre by about 15 minutes of waiting under corpses in the rice field.
    Only in 1975, I find out that my mother, shortly after I ran away with my sister, was killed by headshot, through the press photograph of my mother in the “My Lai Memorial”. (As I previously said, this photo is exhibited there under a false identity)

    It was extremely hard in the following time for us to survive without parents and without any assistance.

    – 2 –

    I want to write to Mr. William Calley! He must know what his actions did to our families! And what it has done to the village of My Lai, to murder 504 people, mothers, children and elderly people.
    For this few (only a handful) of survivors that continued to live, it was definitely very hard. Especially there were only some children and a few elderly people. A terse “apology”, after over 40 years for the total destruction, not only the people but also their homeland, is simply a disappointment!

  4. Jack Brown Says:

    Interesting blog and well done, I believe. I like insightful writing that does not ram an agenda down the readers throat. Wish there was more of it these days…

    As an Air Force veteran (1988-1992) I can relate the topic of lawful orders vs. unlawful was something I was certainly aware of, and I believe it was mentioned in basic training as well as a topic discussed around the shop at times. I think the official line was you had better be VERY SURE the order was unlawful and that a military court would back you up- because otherwise refusing an order would land you in deep deep trouble. I mean jail in Ft. Leavenworth and possibly for many years.

    The problem can be that without the full context or knowledge of a situation (not likely available to someone ordered to carry out orders) it can be impossible to tell if an order is likely to be judged lawful. I knew I could be given an order and not know enough to determine whether it was lawful or not. You just hope you don’t find yourself in that kind of situation. I was ready to make a personal judgment and face whatever consequences might come.

    The previous replies are comical, as is often the case online.

    Murder is still murder? Define murder properly! A law enforcement officer shooting an armed and dangerous bank robber is not murder. Homicide that is deemed justifiable- in whatever context, means the term MURDER is not accurate either legally or morally. Killing in a (justifiable) military conflict is not necessarily murder. However, the senseless intentional (or negligent) killing of non-combatant civilians WOULD normally be considered unjustified and thus the charges under UCMJ for murder could be appropriate. It depends on the context- so I have to reject the stark and rigid statement.

    Who is responsible for “civilian shields” deaths? The attacking military or the defending who put those civilians at risk? That is an interesting question both morally and militarily. Remember that whatever you think the answer is, giving an advantage to someone who uses civilian shields will almost certainly give incentive to repeat and increase that behavior.

    Eyewitness reports tell of Somali gunmen hiding behind women and children when attacking Army Rangers in Mogadishu in 1993(?). To the point of having a pregnant women kneeling down on all fours to serve as a shield and brace for the weapon put across her back. People will do that if they believe it will prevent you from shooting back.

    WWII certainly saw mass attacks targeting civilian population as legitimate military targets. All sides had engaged in this behavior by the end of the war (some parties were still worse in terms of degree). Your government might deem that legal and lawful, but I personally would have a hard time living with carrying it out using weapons of mass destruction targeting civilians. My primary military job did not require pulling a trigger or launching a nuclear weapon thankfully. Generally those decisions from the past have been challenged and it seems we in the U.S. are moving towards considering that as unlawful and so hopefully not likely to be repeated any time soon. You have to recognize however that “the other side” does not follow those same rules.

    And charleyjk4? “They do not care whether an order is moral or not”? Were you speaking of terrorists? I guess you can lump together tens of millions of U.S. veterans as well as millions of active and reserve members- if you wish. Your assertion is quite untrue in my personal experience, and the experience of family and friends. Your assertion is in fact quite insulting.

    Also you imply that order, obedience, and respect are negative values. I am not sure how you might go about having an effective military without them, and remember that having an ineffective military was until recently a recipe for disaster for almost any country. I simply state they are necessary, neither morally good or bad unless one is trying to be judgmental.

    Also you quote fictional characters and not even very good ones. If you trust Hollywood to set your moral compass you are in deep deep trouble. Same goes for trusting Hollywood to reflect reality in nearly ANY context. Give me a break! The only thing that example is good for is to point out the difficult situation a junior officer or NCO could find themselves in. Whistle-blowers in a school or hospital might get fired. Whistle-blowers in a combat (or dangerous) area could conceivably end up with a case of Dead. (Not that I believe Gitmo is as dangerous as was portrayed for dramatic effect.)

    People in schools and hospitals don’t often show much courage when their neck is on the line metaphorically, so don’t be quick to judge people whose neck could be on the line very literally. Don’t volunteer to serve if you aren’t willing to face that challenge. It doesn’t sound like you are on the verge of enlisting anyway… 😉

    Sorry, I guess I should not be amazed at finding most online comments are simple-minded, stupid, or just plain ignorant. People are proud of being ignorant these days and confuse which labels should go with which groups.

  5. jeff Says:

    Can an order be unlawful and legal? I got the impression that what the nazis did was unlawful yet legal based on criticisms of their trails

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