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What legal tests do courts-martial use to determine if a soldier had a duty to disobey an order?
Executive summary
Courts-martial apply a mix of statutory rules, Manual for Courts-Martial guidance, and case-by-case judgments to decide whether a service member had a duty to disobey an order; central authorities cited across reporting are Article 92 of the UCMJ and the Manual for Courts-Martial’s concept of a “manifestly unlawful” order [1] [2]. Military rules presume orders are lawful, but the Manual and courts recognize an exception: an order that “a person of ordinary sense and understanding would have known” to be unlawful can remove the defense of “following orders” and impose a duty to refuse [3] [2].
1. The formal legal baseline: Article 92 and the presumption of lawfulness
Article 92 of the Uniform Code of Military Justice establishes the default duty: service members must obey lawful orders and can be punished for disobedience, so courts start from a presumption that an order issued within military authority is lawful [1] [4]. That presumption means the accused often bears the burden of showing why a particular order was unlawful or why he or she reasonably believed it was unlawful when deciding to disobey [5] [3].
2. The Manual for Courts‑Martial and “manifest unlawfulness” as the critical test
The Manual for Courts‑Martial and related guidance introduce the operative threshold: orders that are “manifestly unlawful” — sometimes phrase‑framed as ones “any ordinary person would know in their gut” to be illegal — create an affirmative duty to refuse, and negate the defense of merely “acting pursuant to orders” [2] [3]. Lawfare’s read explains Rule for Courts‑Martial 916(d) as stating that “pursuant to orders” is a defense unless the accused or a reasonable person would have known the order was unlawful — effectively codifying the manifest‑illegality standard courts use [3].
3. What “manifestly unlawful” looks like in practice — examples and limits
Reporting and expert commentary point to clear violations of constitutional or international law — e.g., orders to target noncombatants or commit war crimes — as classic examples where the manifest‑unlawfulness standard applies and soldiers have a duty to disobey [6] [7]. At the same time commentators warn the standard is narrow and subjective: routine operational ambiguity, vague policy directives, or disputed legality won’t always meet the “manifest” bar, which keeps many borderline cases for later judicial assessment [4] [5].
4. The pragmatic reality: risk, later adjudication, and mixed incentives
Multiple sources emphasize the practical risk posture: service members who refuse an order do so at their peril because the ultimate determination often comes only after a court‑martial, civilian review, or international tribunal — meaning refusals can trigger prosecution even if later vindicated [4] [7]. Conversely, following an illegal order does not automatically shield a service member from prosecution for war crimes; “just following orders” is not an absolute defense under international law and U.S. military practice [7] [1].
5. Diverging views and political context around “disobey illegal orders” messaging
Contemporary reporting shows disagreement over public calls to disobey orders: some lawmakers and advocates encourage troops to refuse unlawful commands, citing the manifest‑unlawfulness duty [8] [9], while military experts warn such messaging understates the legal presumption of lawfulness and the career and criminal risk to service members who interpret orders as unlawful and refuse them [5]. This tension reveals an implicit political stake: public appeals may aim to constrain perceived abuses but also shift legal and practical burdens onto individual service members [8] [5].
6. What’s not fully settled in current reporting
Available sources explain the statutory and manual tests and give high‑level examples, but they do not provide a comprehensive catalog of all judicial decisions applying the manifest‑unlawfulness test or a step‑by‑step checklist a soldier can reliably use in real‑time (available sources do not mention a complete case list or operational checklist). Sources also note ambiguity in how lower‑level commanders, courts, or international tribunals will apply the reasonableness prong in specific fact patterns [3] [2].
7. Takeaway for service members and observers
The law gives service members both a duty to obey lawful orders and, in narrow circumstances, a legal duty to disobey orders that are manifestly unlawful; courts look to whether the unlawfulness would be obvious to a person of ordinary understanding [3] [2]. Because determinations often occur after the fact and the presumption of lawfulness is strong, experts advise caution: when an order’s legality is unclear, advisors urge seeking clarification up the chain, legal counsel, or other noncompliance channels rather than immediate refusal when possible [5] [4].