Disobeying Unlawful Orders in the Military

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The recent brouhaha in the US over soldiers disobeying unlawful orders reminds me of comments in a book I published a few years ago. In sum, what is important for Christians to know is that there are provisions in much of the western world's military for soldiers to disobey such orders.

The post-World War Two Nuremberg trials concluded that “just following orders” did not absolve military personal or their leaders from guilt. And that has been reflected in various statements that make provisions for disobeying unlawful orders, albeit rooted less in religious notions and more on arguments based on jurisprudence, human rights, or theories of conscience (although there is a residue of Christian notions of conscience assumed).[1] What that means is that soldiers in some countries are not required to obey unjust orders that break international laws. 
 
For instance, in the Canadian military, it seems soldiers are not required to obey an “unlawful” command, and may, in fact, be punished for carrying out unlawful orders. The Queen’s Regulations and Orders for the Canadian Armed Forces reads:
 
"(B) Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.
C) An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child."[2]
 
Other governments have similar types of statements. For instance, the United States military is guided by the Uniform Code of Military Justice (§890. Art. 90, page A2-35)[3] and the Manual for Courts-Martial United States (Article 90, page IV-13).[4] Soldiers are required to obey lawful orders, but not unlawful order. 
 
In the UK, the expectation in the Armed Forces Act 2006 (Section 12)[5] is much the same. The expectation is to obey only lawful orders.
 
Of course, arguing one’s case as to what is just or unjust may be difficult, especially in the heat of battle. And, as the Manual for Courts-Martial United States states, an order “is disobeyed at the peril of the subordinate.” Stated bluntly, the consequences of misjudging the situation could be fatal at worst, especially in a military of a despotic regime.
 
In conclusion, while some governments allow for discretionary decision making by their soldiers on matters related to lawful orders, most militaries in the world do not. Even in democracies making a case for an unjust order is incredibly difficult and dangerous. And, unlike in the movies, the good guys do not always win. 
 
For further exploration of such issues, see Christians, the State, and War: An Ancient Tradition for the Modern World (2022).[6]
 
 


[1] Anders Schinkel, Conscience and Conscientious Objections (Amsterdam: Pallas, 2007).
[2] Queen’s Regulations and Orders for the Canadian Armed Forces, 19.015. https://www.canada.ca/en/department-national-defence/corporate/policies-standards/queens-regulations-orders.html
[3] https://jsc.defense.gov/Portals/99/Documents/UCMJ%20-%2020December2019.pdf
[4] https://jsc.defense.gov/Portals/99/2023%20MCM%20(w_%20preface)%20(2023_09_15).pdf?ver=DYv_dgnVlSTjgwUwpO2piQ%3d%3d
[5]
https://www.legislation.gov.uk/cy/ukpga/2006/52/notes?wrap=true&view=plain#:~:text=Section%2012:%20Disobedience%20to%20lawful,are%20more%20routine%20in%20character.)
[6] https://www.bloomsbury.com/ca/christians-the-state-and-war-9781978712911/