by Joe Miller
I screened “A Few Good Men” in my philosophy classes at West Point every semester.
You’re probably familiar with the film, but here’s a brief refresher just in case. Two young Marines inadvertently kill a fellow Marine when they attempt to administer an informal—and banned—punishment on their victim as a response to what they see as slacking off.
The Marines are defended at their court martial by young Navy lawyer Daniel Caffee (Tom Cruise). In the film’s most famous scene, Caffee baits Marine Colonel Nathan Jessup (Jack Nicholson) into admitting that Jessup ordered the two Marines to administer the punishment.
Jessup is arrested for issuing the illegal order. Cruise’s clients are nevertheless dishonorably discharged for following said order.
The film is obviously fiction, but it illustrates a real thing.
Members of the U.S. armed forces have a duty to disobey illegal orders, and they can be punished if they fail to do so.
Individual culpability for crimes committed during wartime is a bedrock principle of modern international law, one that has its origins in the Nuremberg trials of former Nazi soldiers. The charter establishing the Nuremberg courts explicitly states that “[t]he fact that the Defendant acted pursuant to order of his Government or of a superior officer shall not free him from responsibility.”
The Uniform Code of Military Justice (UCMJ), enacted a few years after the Nuremberg trials, affirms this principle, requiring that members of the armed forces must obey all lawful orders and specifying that anyone who refuses to carry out a lawful order shall face a court martial.
The Manual for Courts Martial (MCM) offers more detail, specifying that 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.”
That does, admittedly, put members of the armed forces in a bit of a tough spot.
An order is presumptively legal and failure to obey it will normally result in a court martial. Questioning the legality of the order is a valid, but risky, defense. The legality of a given order is factual matter for a court to determine. An individual’s belief about an order’s legality is irrelevant.
If you disobey an order you think is illegal and you get it wrong, you’re probably going to prison.
That said, the MCM also specifies that a member of the armed forces should not obey “a patently illegal order.”
While the MCM doesn’t define “patently illegal orders,” the Department of Defense’s Law of War Manual does define several categories of illegal orders.
It concludes the section on illegal orders with one very explicit example: “orders to fire upon the shipwrecked would be clearly illegal.”
On September 2 of this year, the U.S. Navy did exactly that.
The White House has now confirmed that the Navy conducted a second strike on a burning ship on which two survivors were spotted clinging to the mast.
The order to fire a second time is the literal textbook example of patently illegal orders that members of the military have a duty to refuse.
But whatever the origins of the order, every single sailor and Marine in the chain of command had an obligation to refuse it.
Their failure to do so is a crime that can and should be addressed via courts martial.
The U.S. military has good reasons for criminalizing things like firing on the shipwrecked or on aviators who have ejected from their aircraft or executing a soldier who has surrendered.
Sometimes members of American armed forces will surrender or eject from an aircraft or leap from a sinking ship. At that point, they are out of combat and no longer a threat. We don’t want our enemies killing our servicemembers after they are rendered helpless.
The best way to ensure that our servicemembers are not killed after they stop being combatants is to refrain from killing other nations’ noncombatants.
But such agreements are fragile. They rest upon each nation’s willingness to police its own behavior.
Rejecting the “just following orders” defense was the right thing to do at Nuremberg—indeed, it is a principle that American negotia- tors insisted upon.
And the prohibition on killing noncombatants—including former combatants who have been rendered helpless—is drilled into every American soldier, sailor, airman and Marine.
We should all insist on holding members of our armed forces accountable when they fail in that duty.
joe.miller@fountaindigitalconsulting.com
