A soldier definitely has an obligation to not open fire on someone illegally, regardless of orders given.
In United States v. Keenan, the accused was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that “the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal”. The soldier who gave the order, Corporal Luczko, was acquitted by reason of insanity.
Yes–modern soldiers for example are trained about orders that constitute war crimes or crimes in general. No soldier would expect to avoid trouble if they executed a civilian “because they were ordered”, nor would a female soldier “ordered” to give her CO a blow job expect that that order would be required to be followed. I genuinely can’t speak to training in the 1950s, but yes, 100% modern day soldiers are taught about legal and illegal orders. I’m sorry you weren’t, but that doesn’t change objective reality.
The General who was quoted earlier talking about unlawful orders is someone who has received the standard training for an officer of his rank, and forms of that training actually get distilled all the way down to enlisted men. They even put out paper pamphlets in the 80s that they gave out concerning things like war crimes etc and what was illegal or not. I don’t know that they still give those out, but they absolutely still train on it. That general was born 4 years after your officer training, as a point of reference to how out of date any of your anecdotal experience would be.
I’ve stated what the laws are, you can draw your own conclusions. I have also said it is standard that pretty much every military expects you to fight to the death.
I will say as clarification–in a war or combat situation it is extremely common that a commanding officer gives you an order which is inherently dangerous. You are expected to follow that order. It is expected some portion of the men following that order will face a risk of death, and that some of them will die.
Does the military expect you to keep fighting if you’re surrounded by 10,000 guys, have zero ammunition and supplies and no hope of achieving anything? I would say it doesn’t “in reality”, but this OP was about military law and that is where things go from reality to technicality. There’s lots of absurd rules and ideas that get bandied about in the military, some of them are adhered to very vigorously, some are not.
This isn’t actually that different from the society outside of the military. There’s lots of give and take with enforcement of laws and cultural values.
Is this quite precisely true? I would expect, for instance, that it would be unlawful for an officer to order a soldier to attend a specific religious service… but a soldier given that order could certainly choose of his own free will to attend, and if he did so, the soldier would be doing nothing unlawful.
And to get back to the OP: Suppose that an officer in charge of some group of soldiers found himself and his men without ammunition, without provisions, and surrounded in open terrain by a well-equipped enemy force that outnumbers them ten to one. Suppose that this officer then tells his men “Since we are not capable of fighting against this enemy in this circumstance, surrender is lawful, and I order you to do so”. And then suppose that one of the soldiers says “Sir, with respect, I still have my knife, and so I am still capable of fighting. The order to surrender is therefore unlawful, and I refuse to obey it”.
Well, OK, first of all, that idiot is likely to end up dead. But in the remarkable circumstance that he survives, would it be legally possible to bring legal consequences on him for his actions?
Generally the obligation to disobey an unlawful order relates to orders to commit crimes. The reason you are taught to disobey them is soldiers can and have been sent to prison for obeying unlawful orders, “superior orders” is not an affirmative defense, generally, in the United States military for committing a crime. However it has been factored into sentencing decisions before (Lieutenant Calley was given a reduced sentence by the court for My Lai because they said he genuinely believed he was following his orders, which didn’t exonerate him, but made the court decide to punish him less harshly.)
This is frankly silly. Of course a service member could choose to attend the religious service anyway. The “obligation to disobey” is that if you know the conduct is in and of itself unlawful, “just following orders” isn’t a legal defense. The service member is still legally liable for their own unlawful action. It’s not just that you won’t be punished for failing to follow an unlawful order, you will be punished if you do follow it (where “unlawful order” in this context means an order to perform actions that are in and of themselves unlawful).
In theory.
Unfortunately, in actuality, it often doesn’t work that way.
As to the hypothetical of the Soldier with a knife, I personally part ways with @Martin_Hyde here. I think the UCMJ and the Code of the U.S. Fighting Force do allow honorable surrenders under certain circumstances. But the hypothetical of an individual member of a unit whose commander has surrendered deciding on their own to attack the enemy is so odd, I’m not sure there’s a good factual answer.
But I think if such a hypothetical diehard were charged with disobeying an order, they would have a pretty darn good affirmative defense in the form of the Code of the United States Fighting Force:
Right, so there were some Filipino guerrillas who fought against the Japanese for the entire occupation, if somehow a U.S. service member had fallen in with one of those groups, and opted to ignore King’s surrender and continue fighting, I think there is 0% chance they would be prosecuted for disobeying orders after the war (much as King was not prosecuted for his illegal order.) I additionally think much like King–they would probably receive a hero’s welcome back home.
In fact–and I’m not surprised this happened and I was unaware of it since I’m not very well informed at all in the “Southeast Asian” theater of WWII–it looks like a U.S. officer actually did that very thing during the Japanese occupation, and faced 0 legal consequence.
The problem with a huge amount of the forgoing is that there is no useful history of prosecutions.
There is much evidence of lack of prosecution. Such a lack does not tell us the legality, only a prosecution that ends in a verdict can do that. There is wiggle room for a prosecutor to move, and it is impossible to know the rationale for the lack of a prosecution. But minimally a prosecutor needs to be satisfied that there is a reasonable chance of a guilty verdict. For actions occurring in the fog of war, gathering enough evidence may make this impossible. So no action is taken. But this does not provide a reading of the law.
When someone is not charged, it cannot be used as a legal interpretation of the law. Only a court can do that. So we need actual outcomes from courts martial.
Except when the military seems to never, ever, prosecute such cases despite many thousands of possible cases they could bring I think one can infer something about the law from that.
My interpretation is largely that the codification of “no surrendering” is basically two-fold–mostly it’s about promoting a certain culture, and secondarily it’s to reserve the potential for punishment for egregious cases of misbehavior where a commander might actually attempt to surrender a command for manifestly improper reasons. I don’t think we’ve really had too many cases, or any cases, of that that I’m aware of in our military history. Like that’s Benedict Arnold level shit, but of course he predates the UCMJ.