Unlawful orders

[Dingfod]

I posted this in another thread, but decided maybe it deserved a thread of its own because it is outside of politics a little bit.

How does the grunt in the field determine what is a lawful or unlawful order? I mean, murder should be obvious, but what else would there be to tell? It's not like they can call the legal department and say "Sarge says shoot the sumbitch, the sumbitch is unarmed and holding a white flag, can I go ahead and shoot the sumbitch?" Sarge may not like that much.

I understand that during the Vietnam war and even in Desert Storm, the soldiers were given cards with Geneva Convention rules for treatment of enemy prisoners, but this time they were not. In fact, the administration made quite a big deal out of saying the Geneva Convention didn't apply. If the administration sets the tone by implying that international law is to be ignored, how can someone at the field level make a determination of what is legal or not? You'd think it would be obvious, but I bet it's not.

If, by international law, the entire pretext for attacking Iraq was unlawful, is everyone in the military culpable for obeying that unlawful order? Remember, Iraq had not attacked anyone since they invaded Kuwait. Attacking another country because they merely might be capable of being a threat is a rather new tactic, gunboat diplomacy without the diplomacy.

Miscellaneous curious ramblings by a guy that never served in the military either.

[dave_a]

Originally Posted by warrenly

I posted this in another thread, but decided maybe it deserved a thread of its own because it is outside of politics a little bit.

How does the grunt in the field determine what is a lawful or unlawful order?

As a former grunt in the field I can tell you plainly we don't know what a lawful order is or isn't unless the order follows along the lines of "Hey, I don't like brown women and that there is a brown woman, shoot her in the leg so we can watch her scream". If sarge says shoot that guy over there and it looks like an unarmed civilian, we shoot him. We don't know that he isn't a combatant or someone with a bomb or whatever. If sarge says do it, we do it without question.

Now, remove sarge from the equation and it get's much worse. If sarge is there and he gives us an improper order, then sarge answers for it, not us. When is it justifiable (legally) to use deadly force? I have previously related experiences in the Marines where I had to make split second decisions on whether to shoot or not.

There was no right answer and there was no guidance even possible given the requirement to make an instant decision. It was the unknowable circumstances that determined if I would be acting lawfully or not. A vehicle runs the gate, my orders are to control access to the gate. I can't tell if there are bad guys in the vehicle or if it is just someone absent minded or someone who wrongly assumed I recognized them. Do I shoot? If I don't and they are bad guys, I was derelict in my duties at best and will likely be courtmartialed. If it was friendly forces and I do shoot, I will likely face courtmartial. Damned if you do, damned if you don't, it is a toss of the dice as to how it works out.

There are way too many grey areas that occur in a military operation to write a manual anyone can comprehend covering all the possible scenarios and the proper response.

[Shake]

Originally Posted by dantonac

There are way too many grey areas that occur in a military operation to write a manual anyone can comprehend covering all the possible scenarios and the proper response.

Damn, I was gonna chime in on this one as I remember multiple briefings about the Geneva Convention, legal combatants, etc., but this line sums things up pretty damn well!

They give you some big, general guidelines to follow, but they're pretty vague. As the above says, there are just too many situations to try to come up with individual rules for each one.

[wade-w]

Yes there are huge grey areas here, especially during combat. At times like those, stopping to question whether or not an order is legal is likely to get people killed. But when you are a guard in a POW camp and sarge tells you to torture a prisoner, that is clearly an unlawful order. If you are caught you will be held accountable for following it. In fact, this is exactly the type of situation that this policy was designed for.

The only guard duty I ever pulled had rather stringent and specific orders on the use of deadly force. If anyone came past my post without my express permission, I was required to shoot to kill immediately and without further warning. There were no exceptions to this order; it explicitly included friendly personnel, even shipmates. However, under the circumstances, I considered these to be lawful orders.

As for holding the entire military culpable because an invasion violates international law, I'd say no. The decision to go to war is a political one, and not something that the military should have any control over. Once your government decides to fight, it doesn't matter whether or not that government has international approval; the military is obligated to comply.

[Dingfod]

Doesn't questioning an order's legality go completely against all the conditioning to automatically obey orders by superiors without question. I was going to say training, but that part is more conditioning a response, is it not?

While sarge may be accountable for ordering you to shoot the woman to watch her scream, you would be accountable for obeying an unlawful order, would you not? I mean, Ms. England is not going to get out of being punished just because her superior ordered her participation in the Abu Graihb torture, right? I don't know, I'm just curious how that works.

I can buy not holding the military as a whole responsible for violating international law. What about a military action that violates a U.S. law? Why are so many in the chain of command willing to take the fall for their superiors?

[dave_a]

Originally Posted by warrenly

Doesn't questioning an order's legality go completely against all the conditioning to automatically obey orders by superiors without question. I was going to say training, but that part is more conditioning a response, is it not?

Well in the Marines our doctrine was "instant and unquestioning obedience to orders". At the same time we were not to commit crimes and we were aquainted at least vaguely with the Geneva convention.

So, it's one of the kind of grey areas. If you disobey an order because you believe the order to be illegal/against the rules whathaveyou, and the superior giving that order reports you, then it is up to the judgement of one's unit or higher as to whether refusal to obey was warranted or not.

While sarge may be accountable for ordering you to shoot the woman to watch her scream, you would be accountable for obeying an unlawful order, would you not?

Yes. In a case like that it would be considered so obvious the order was illegal that even the lowliest grunt fresh out of boot camp should know that.

I can buy not holding the military as a whole responsible for violating international law. What about a military action that violates a U.S. law? Why are so many in the chain of command willing to take the fall for their superiors?

Dunno, I certainly wouldn't have.

[Shake]

What the public is ignorant of, is that in non-wartime situations, orders as such, are rarely given. Peacetime, stateside bases run almost like any business.

Now wartime is a little different. Since you mention Pfc England, warren, I'll address that example. Now, Ms. England was working in a prison facility, not out on the lines holding a rifle. Granted, her situation was potentially dangerous, but she was not in a situation where split-second decisions were called for (regularly anyway), either. To emphasize my point about "orders", I'm sure no one came to her and said, "Private England, I order you to humiliate these prisoners." Her watching such actions go on, and worse yet, participating in them, shows blatent disregard for human rights and the Geneva Convention. She is as much at fault for not reporting such abuses as she is for participating in them.

I can buy not holding the military as a whole responsible for violating international law. What about a military action that violates a U.S. law?

Another fuzzy, gray area there. That is a good deal more complicated. I'm not gonna tackle that one right now.