Can Military Commanders Be Court-Martialed for Giving Unlawful Orders?

The scenario of a military commander or officer giving an unlawful order and facing court-martial remains rare but not impossible. Under the unique structure and stringent regulations of military hierarchy and justice, certain circumstances can lead to such an outcome. Understanding the nuances of unlawful orders, the context of orders given, and the legal consequences are crucial for both commanding officers and their subordinates.

Who Can Issue Orders in the Military?

It's essential to first understand the hierarchy within the military. Only commissioned officers have the authority to issue orders to enlisted personnel. This means that giving an unlawful order is more likely to occur from a higher rank to a lower rank. However, it's important to note that the concept of an unlawful order can also apply in garrison settings and on domestic soil, not just in the operational theater of war.

Rare but Possible: Modern Context of Unlawful Orders

Though rare, the possibility of a commander being court-martialed for giving an unlawful order is a serious matter. In my experience as a commander and in the course of my knowledge of military justice cases, such incidents are not frequent. The scenario often involves a commissioned officer giving an order that is illegal, such as an order contravening the Law of Armed Conflict.

For example, a young specialist (a low-ranking enlisted member) who gives an order to a lower-ranking Private to wash the specialist's car is an unlawful order. However, in most cases, such junior enlisted members are not court-martialed for following orders blindly. Instead, non-judicial punishments like an Article 15 may be more appropriate. Article 15 is a process where the commanding officer can impose disciplinary actions that do not require a court-martial.

Personal Accountability: On Giving Unlawful Orders

The responsibility falls on the commanding officer who gives the unlawful order, not on the subordinate who follows it. For instance, if an officer orders a subordinate to perform a task that clearly contravenes the Law of Armed Conflict, even if the subordinate refuses the order, the officer who issued it would still face the possibility of a court-martial. This is because the officer is responsible for the ethical and legal standards of their command.

Definition and Scope of Unlawful Orders

The term 'unlawful order' is defined as an order that a commissioned officer should reasonably know is illegal. This definition is not limited to orders given in the operational theater but also applies in garrison and on domestic soil. An order that instructs troops to engage in physical assault, for instance, would likely be considered an unlawful order. In such cases, it is expected that the troops would refuse to follow the order.

Potential Legal Consequences

The consequences of giving an unlawful order can be severe. Commanders who give unlawful orders can expect to be immediately relieved of their command, repatriated, and charged with various offenses. If found guilty, they could face the following penalties:

Given the gravity of these consequences, commanding officers are expected to adhere strictly to the ethical and legal standards of military service.

In conclusion, while the occurrence of a military commander being court-martialed for giving an unlawful order is rare, it is a real and serious possibility. Understanding the definition, scope, and consequences of unlawful orders is crucial for all members of the military hierarchy to ensure strict adherence to ethical and legal standards.