An unlawful order is a command that is clearly contrary to the Constitution, U.S. law, or international law, and service members are legally required to disobey it. These are not simply disliked or controversial orders, but those that involve clear violations, such as intentionally targeting civilians, committing war crimes, or falsifying records. While an order's lawfulness is sometimes ambiguous, the obligation to refuse an order is clear when its illegality is obvious.
Characteristics of an unlawful order:
- Constitutional violations: An order that contravenes the U.S. Constitution is unlawful.
- Statutory violations: An order that violates federal or state laws is unlawful. This includes orders to misuse resources or interfere with lawful protests.
- International law violations: An order that constitutes a war crime or violates other principles of international law is unlawful.
- "Manifestly illegal": For an order to be considered "manifestly illegal," its illegality must be clear and obvious to the service member receiving it.
Examples:
- Intentionally targeting civilians
- Committing acts of torture or abuse
- Falsifying official documents
- Theft or assault
Consequences
- For the service member: Following an unlawful order does not absolve a service member from criminal responsibility for any laws violated.
- For the commander: The commander who gave the unlawful order is also responsible under the doctrine of command responsibility.
- For the service member refusing: A service member who disobeys a lawful order faces disciplinary action, but refusing an unlawful order is a legal obligation.
How to handle an uncertain order
- Seek legal advice: If there is doubt about an order's lawfulness, service members should seek legal counsel from military lawyers as soon as possible.
- Consult the chain of command: Advice can be sought from legal advisors up the chain of command to resolve the issue.
