Legal Order (Military)

Factual Questions
1

A very basic question: What is the definition of a legal order in the military (US)? Or, if you wish, what constitutes an illegal order?

Despite the simplicity of my question and visiting multiple sites, I am actually having a hard time finding a clear answer.

Thanks!

2

Did you look here?

3

Stated simply, an illegal order is an order to do something which is against the law.

4

An illegal order is pretty much what it sounds like…an order to break a law. Here’s a short article about legal and illegal orders, and a soldier’s obligation to break a manifestly illegal order:

5

Here’s a good answer to your question.

6

Thanks to all.

I had seen the about.com blurb but didn’t find it too informative. It seems to deal mostly with obeying and disobeying orders, rather than defining ‘legal orders’.

Coupling the gist of the definition in your links with what I’ve already gleaned, is that a legal order must:

  1. be made by an appropriate military superior/authority
  2. relate to military duty (i.e. must have something to do with the current operation)
  3. not contravene the Constitution or any existing laws (and treaties)

Fair enough, but what if you’re ordered to blow up a house that’s being used to hide the weapons of your (insurgent) enemies? Blowing up houses is illegal, no? Why then is it considered legal to be so ordered? In fact, isn’t killing your enemy before he’s tried to kill you (thereby eliminating self defense as justification) not also illegal? It violates the law against murder (duh).

Now, obviously soldiers can be ordered to snipe at the enemy and destroy his sanctuaries, so I’m not trying to make some silly assault on the legitimacy of ‘war’. No, what I am looking for is a more comprehensive definition which would make it clear that things like the above examples are legal. I hope that makes sense.

7

Military law is largely separate from civilian law. It’s illegal for me to blow up your house, but there is no law against a soldier blowing up an enemy weapons cache in a war zone.

Killing enemy combatants is not murder if they meet the requirements of the rules of engagement.

The definition of murder for US military personnel is in Article 118 of the Uniform Code of Military Justice.

8

Article 90(c)(2)(a)(i) of the UCMJ may provide some guidance too: “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.”

Article 90(c)(2)(a)(ii) states: “The lawfulness of an order is a question of law to be determined by the military judge.”

So, like a random citizen who believes they are being illegally arrested, they are still required by law to submit to the arrest and let a judge determine the lawfulness of the arrest. If they resist, then that’s the whole new crime of resisting arrest, whether or not the original reason for the arrest was legally sufficient or not.