What evidence and burden of proof are required to justify refusing an order at a court-martial?
Executive summary
Military law requires a servicemember to obey lawful orders and to refuse unlawful ones; the determination whether an order is illegal is ultimately decided by a military judge or tribunal after the fact, not by the individual with certainty in the moment [1]. The governing standards in practice are “manifest illegality” (an order a person of ordinary sense would know is unlawful) and the UCMJ’s Article 92 defenses and Rules for Courts‑Martial [2] [3].
1. The legal frame: duty to obey versus duty to disobey
The Uniform Code of Military Justice and the Manual for Courts‑Martial create a binary duty: obey lawful orders and disobey unlawful ones. Courts and military guidance recognize that following an illegal order can lead to court‑martial; conversely, refusing an order can itself trigger prosecution for failure to obey under Article 92 and related rules [4] [5].
2. What counts as enough evidence to justify refusal? The “manifest illegality” test
Military practice and commentary emphasize that only orders that are plainly and obviously illegal must be disobeyed; that standard is often called manifest or “patently illegal.” If the illegality is obvious—ordering attacks on civilians, mistreatment of detainees, fabricating official records—lawyers and courts say a servicemember must refuse [3]. Lawfare’s analysis notes Rule for Courts‑Martial 916(d) allows following orders as a defense unless the accused knew—or a person of ordinary understanding would have known—the order was unlawful, reflecting the manifest‑illegality threshold [2].
3. Who decides legality—and when?
Available sources make clear the military judge, not the individual service member, decides legality in formal proceedings; the practical reality is that legality often gets resolved “after the fact” through courts‑martial or other tribunals [1]. This creates a legal risk calculus: a servicemember must weigh likely illegality against the immediate professional and criminal consequences of refusal [1].
4. Burden of proof in court‑martial proceedings about refusal
Sources indicate that courts‑martial proceed like other criminal tribunals: the government prosecutes alleged disobedience and must present evidence; the accused may offer defenses and evidence of the order’s illegality or of following orders as justification [6] [7]. The Manual for Courts‑Martial and procedural rules govern disclosure and evidence; post‑MJA and recent rule changes shape member selection and evidentiary practices that affect how those disputes are decided [6] [8].
5. Practical examples of what courts treat as “obviously unlawful”
Commentators list clear categories where illegality would be manifest: targeting civilians, torture or inhumane treatment of detainees, falsifying official records, ordering reprisals against non‑combatants, or criminal theft—orders whose unlawfulness normally “appears obvious” and thus must be refused [3].
6. Risks and penalties for refusing an order
Refusal risks administrative action or court‑martial charges for insubordination; penalties range from nonjudicial punishment to general court‑martial and imprisonment, depending on severity and context [9] [5]. Sources stress battlefield conditions and mission criticality often influence how harshly refusal is treated [9].
7. Competing perspectives and institutional agendas
Defense‑oriented organizations and commentators emphasize the duty to refuse illegal orders to uphold the law and human rights and caution that only courts can definitively rule legality (Military Law Task Force cited in the FAQ) [1]. Institutional sources—Manual for Courts‑Martial, congressional summaries—stress procedural safeguards, evidentiary rules, and the need to preserve discipline and mission readiness, reflecting an institutional interest in limiting arbitrary refusals [7] [6]. Lawfare highlights more complex policy questions—e.g., refusal of catastrophic orders such as nuclear launch—and explains doctrinal limits on the “following orders” defense [2].
8. What the sources do not settle (limitations in reporting)
Available sources do not provide a single, step‑by‑step checklist a service member can apply in the field to prove an order illegal in real time; they do not quantify how often refusals are prosecuted or the precise allocation of burdens in every procedural posture (not found in current reporting). They do, however, show the legal standards and procedural structures that will govern any dispute once it reaches a court‑martial [1] [6] [7].
9. Bottom line for servicemembers and lawyers
If an order is plainly criminal—target civilians, commit torture, fabricate record—both practice and commentary say refuse it; that refusal will likely be defensible under the manifest‑illegality standard [3] [2]. If illegality is less clear, refusal carries real legal and career risk because final legality determinations occur in court or tribunal after prosecution [1] [5].