I’ve read some stories about Afghanistan where Afghan commando units were ready to fight the taliban, but their officers told them to surrender and give up their weapons instead.
In the US military, what situations can soldiers legally disobey an order to surrender? Who has the legal right to tell them to surrender? Does anyone above them on the chain of command have that right, does it have to be the commander in chief, or their most immediate officer above them?
Does it matter based on the situation? What if the US soldiers outnumber the people they’re fighting 10 to 1, but they’re still told to surrender? What if there is suspicion that the officer who tells them to surrender has been bribed?
I am not a lawyer or a member of the armed forces.
Looking into it (admittedly superficially) it appears that soldiers are legally required to keep fighting if they are able to do so. And if they are unable to do keep fighting, they are legally required to evade capture if they are able to do so.
I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist. - Article II of the United States Military Code of Conduct
So I think if a soldier was ordered by his commander to surrender in a situation in which he felt the unit was still capable of fighting (or escaping) he could regard this as an illegal order and disobey it.
Soldiers are not allowed to surrender. Commanders cannot order their Soldiers to surrender.
If you are in a small group, out-numbered 10-1 and completely surrounded by the enemy, then . . . you may consider yourself “captured”.
Yeah, there are no legal orders to surrender. Now a tactical withdrawal or fleeing the battlefield–disobeying those orders would be as serious as disobeying any other order in combat before the enemy-- a serious crime in the military legal system.
I wonder how a hypothetical national surrender, à la France 1940, would work? I mean, no one in uniform is allowed to surrender in their own personal or command authority. I guess the loophole would be that the civilian command authority at the top of the chain of command wouldn’t be bound by such restrictions, and their surrender command could be promulgated and obeyed as a legal order.
The UCMJ is created by Congress ultimately and enforced ultimately by the judicial branch (while the military has its own Article I court system; its court decisions can be ultimately appealed up to the U.S. Article III Supreme Court)
In a terrible scenario where I imagine a “national capitulation” of the United States akin to what France did during WWII, I would assume one mechanism of making it kosher under U.S. law would be that a peace treaty would be signed with the victorious power. Under the U.S. Constitution, treaties trump all domestic law other than the U.S. Constitution itself, so if the treaty specified that the Armed Forces were to say, leave their posts or turn over their posts and weapons to the occupying power, the treaty would automatically trump UCMJ provisions against surrendering. Also the UCMJ is a regular law itself, Congress could just amend it also in a situation where the country is surrendering.
A legal national surrender would likely require the concurrence of the Congress and the President, as I think the President’s power as Commander in Chief is fairly absolute and he could continue fighting regardless of what Congress wanted, so he would have to be on board.
That would be the equivalent of a rogue general doing it in my example. Charles de Gaulle was not a government minister or elected official when the French surrendered–he had been removed from his cabinet position. President Labrun had accepted Prime Minister Reynaud’s resignation, and accepted a new government being formed under Petain, who signed the armistice with Germany.
Presumably, if the surrender is part of a peace treaty, then the troops don’t stop fighting because they’re surrendering; they stop fighting because we’re then no longer at war.
Has any soldier in the US been prosecuted for surrendering?
In WWII in the Philippines alone 76,000 US troops surrendered. Not sure how that works with what has been posted here. Surely they were still, technically, capable of fighting.
I’d be interested in knowing more about that. General Edward King who was directly ordered by MacArthur not to surrender, when the situation became impossible, took it upon himself to surrender anyway. He negotiated a capitulation and spent 3+ years as a Prisoner of War. The entire time, he fully expected to face a court martial on his emancipation, as he knowingly had disobeyed a direct order and standing U.S. military regulations. However upon his release he was basically greeted to a hero’s welcome and never faced formal sanction.
I’d be honestly somewhat interested if there’s a “rest of the story” to that. It wouldn’t shock me to find out he was surreptitiously told by higher ups that he could surrender instead of literally having 60,000 men fight to the death with no chance of victory, but it was done through back channels so as to preserve the fiction that MacArthur or even FDR never officially sanctioned an “American surrender.”
That’s probably the most famous example in U.S. military history, and literally everything I’ve ever read about it indicated, as you wrote, that General King fully expected to be court martialed upon his return to the U.S. My personal reading history is far from definitive, of course, but I’ve never even seen a hint that General King’s surrender was anything other than his own personal decision to try to save the lives of the men under his command (and the civilians accompanying them) at what he thought would be the cost of his career and his “honor”. Of course, he didn’t realize just how horrific captivity would turn out to be for his men…
Personally, I would be shocked if there had been some sort of secret “surrender but pretend it’s your decision” order, and even more shocked if had somehow been kept a secret for 80 years.
Regarding disobeying surrender orders and the Philippines in 1942, it took some time for the complete surrender of all forces in the Philippines to be accepted, but ultimately it was. Surrender in the South:
The story of the surrender of the Visayan-Mindanao Force is an even stranger one than that which preceded it. In the south few of the commanders were so hard pressed as to be incapable of further resistance and none had any desire to surrender. The Japanese had landed on only three island. On two of these, Cebu and Panay, the local commanders had pulled back to well-stocked –574–
and comparatively safe retreats in the mountains, from where they hoped to wage guerrilla warfare for an indefinite period. Any effort to drive them from these strongholds would involve the Japanese in a long and expensive campaign. On Mindanao, where the Japanese had committed larger forces and scored more important gains than elsewhere in the south, General Sharp’s troops had been defeated, but elements of his force were still intact and capable of continuing organized resistance. plans for their withdrawal to the more remote portions of the island, out of reach of the enemy, had already been made and the sector commanders were ready to put these plans into execution on orders from General Sharp.
Technically, yes, but they were short on ammo and food, were being ravaged by illness, and had no realistic hope of resupply or relief. At the point General King surrendered, they didn’t have any realistic means of continued effective military resistance. It was probably a matter of days before they were overrun, and even if the Japanese didn’t press home an attack, they were probably not much further from starvation.
As @Martin_Hyde wrote, there seems to be a pretty universal consensus among military historians that General King didn’t have any realistic alternative to surrender, and even then, he seemed to expect to be court martialed upon his return. Technically, he could have been, and I suppose one could make the argument that he technically should have been, but everyone at the time realized he was in an impossible situation, and following the technical legal requirements would have been not just suicidal but stupid. Even in the U.S. military, there is such a thing as prosecutorial discretion.
I am certainly not arguing that they should not have surrendered. Personally, I think surrender can make perfect sense. No need to squander lives for no effect. (Yes, I know there are cases where refusal to surrender was important like the Battle of the Bulge but there are times it is warranted.)
I am questioning the notion that the law (or military law) makes surrendering a crime if you can avoid it in any fashion. You either keep fighting until the end or you retreat and re-group and fight some more.
At least, that is what it sounded like at the start of this thread.
That is, in fact, the law for the U.S. military. General King was technically in violation of the law, which is why he expected to be court martialed, and as I wrote, he could have been and technically maybe he should have been. But in real life, the law isn’t always enforced with draconian disregard for actual circumstances.
Legally, U.S. military personnel aren’t allowed to surrender. That doesn’t mean they’ll necessarily be court martialed for doing so in real life. But that’s always going to be a judgement call, and a matter of prosecutorial discretion.
That is 100% what the legal situation is, you do not surrender your command as an officer. That doesn’t mean you have to fight to the last man–for example a retreat is entirely legitimate, if necessary, that’s different from surrendering to the enemy. The doctrine would in fact suggest you have to continue fighting until you basically have completely evaporated as a fighting force and large segments of your force, due to degradation of military capacity become “captured.” But that is seen as functionally different from a surrender.
King was defending islands, so he didn’t have a lot of options for tactical retreat at scale, and he was basically out of ammunition and food, with zero hope for resupply. It was a much worse situation than the defenders of Bastogne were in, who knew that major efforts were under way to push back the German lines and they had at least the possibility of being linked back up with friendly lines, and actually were receiving some aerial supply drops.
But I think he was right, as a matter of regulation, to expect to be court martialed. The argument of the prosecution would be that he still had fighting men and they could still physically continue to fight, even if defeat was certain and their military capacity was so diminished by malnutrition and low amounts of ammo that they were very ineffective.
Like I said it’d be really interesting to know more about the back end of it as it’s not something I know much about. I can easily imagine it simply being a decision of “these guys fought past the point honor requires, and prosecuting their commander doesn’t represent good judgment.”
Edit: They also didn’t surrender for a trip to Club Med. King himself faced serious mistreatment by the Japanese, and many of the surrendering Americans died from their mistreatment at the hands of the Japanese. I also am not sure there would have been much stomach for pouring salt in those wounds.
By the way, I found this interesting article on the Civil War, indicating surrender was such a common practice, that perhaps 25% of combatants surrendered during the war - some multiple times:
Which is very different from the 20th and 21st Century U.S. military.
Has any US soldier been prosecuted for surrendering? As with most questions that would suggest “never happened” it probably has happened but I cannot find an example.