The question of whether a military member can refuse an illegal order from a superior has been a subject of debate among service members. It is both possible and, in some respects, mandatory to resist such an order, even if it brings severe punishment. This article explores the dynamics, ethical considerations, and legal ramifications of such a refusal.

Can Military Members Refuse Illegal Orders?

The answer is a resounding yes. Refusing to obey an illegal order is not only possible but also a fundamental duty under the principles of military law and ethics. Military personnel are bound to uphold the law and refuse commands that violate their oaths and ethical standards. It is a recognition that adhering to illegal orders would result in the member personally facing the legal and moral consequences.

Consequences of Refusal

While the option to refuse illegal orders exists, the decision carries significant risk. Refusal can lead to a court martial, where the legality of the order is evaluated. In such cases, if the order is deemed illegal, the officer who gave the command faces legal action, while the protester is exonerated. However, the issue of legality is not always cut and dry, and the refusal might still result in severe personal consequences.

Facing Consequences

Refusing an order due to perceived illegality, such as an unconstitutional command, can result in various disciplinary actions. These may include a reprimand, loss of rank, Article 15 (a non-judicial punishment process), or discharge. It is important to exercise caution and ensure that the resistance is well-founded, as the potential career ramifications can be profound.

Training and Awareness

Military personnel receive training on laws of armed conflict (LOAC) and ethical conduct. This training often addresses the prohibition against killing non-combatants, harming prisoners, and engaging in looting or pillaging. Service members are aware of the legal constraints and often raise questions during training sessions. However, the reality of the military environment can sometimes lead to compliance with unlawful orders due to peer pressure or fear of consequences.

Uncommon but Not Unheard of

While it is rare, there are documented cases of military members refusing illegal orders, either to protect fellow soldiers or to uphold their oaths. For instance, during the Vietnam War, some soldiers refused to follow orders they considered morally wrong. More recently, there have been reports of military personnel challenging illegal orders in the face of potential penalties. These actions often involve significant personal risk and can lead to court martials, making them a crucial but delicate matter.

Personal Accounts and Observations

Some military members have never witnessed or heard of a refusal of illegal orders. However, others report training on LOAC that includes scenarios where standard protocol might be bent. For example, in the case of extreme heat conditions in Korea, a standing order from the base commander mandated that no physical training (PT) should occur if the temperature and humidity reached 90 degrees Fahrenheit and 90 percent humidity. Despite this order, the entire company routinely ignored it, following the more lenient command of their company commander.

Overall, while refusing an illegal order is a legal and ethical defense, it comes with significant personal risk. Military personnel must weigh the potential consequences against their sense of duty and the ethical principles that guide them. It is a decision that can have long-lasting impacts on their careers and personal lives.

Keywords: military orders, illegal commands, court martial, legal defense, career consequences