When Is A Command Unlawful?

Military ethics is a focus of this blog (readers who have described the blog to me as being "eclectic" may be surprised to learn that it has a focus!) so I flagged this piece from the December 1st issue of the Canadian Forces newspaper, The Maple Leaf.

Military ethics recognizes the principle that not all commands are lawful, and so an unlawful command need not be followed. However, not all commands are unlawful, and the pressures of military operations don't allow for all commands to be exhaustively scrutinized. A 2010 finding of the Court Martial Appeal Court of Canada in Regina vs. Liwjy ruled that a mere difference of opinion between a subordinate and a superior as to whether a lawful order was the best course of action is not grounds for a soldier to disobey that order.

"The accused, a vehicle technician, had been ordered to perform a brake adjustment on a trailer using a specific technique. He disobeyed due to safety concerns. He spoke with an unidentified person at the CF School of Electrical Mechanical Engineers who agreed that an alternative method was potentially better. However, the accused’s superiors considered that their technique —which was the technique set out in the CF Technical Orders—was safe.

The CMAC reviewed the law established by the Supreme Court of Canada—our country’s highest court—and determined that the only exception to a CF member’s duty of obedience is where a superior’s command is “manifestly unlawful”. This is consistent with Note B to QR&O article 19.015, which reads, in part, “where the subordinate does not know the law or is uncertain of it, he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.”

In essence, the court ruled that unless an order crosses "the high threshold of being mainfestly unlawful", then a soldier must deem a command to be lawful and must obey it, or a military ceases to function. Readers who are unfamiliar with militaries may be reassured to know that soldiers are not left in the dark as to whether a command is lawful or unlawful, relying only on "the gut test". Recruit courses, premission briefs, annual ethics training and rules of engagement for deployments are all part of military training.

Complete coverage of this story can be found here.