Not all mil­i­tary or­ders are le­gal

Los Angeles Times - - OP-ED - Anthony J. Colan­gelo isa Ger­ald J. Ford Re­search Fel­low and pro­fes­sor of law at South­ern Methodist Univer­sity in Dal­las and a con­sul­tant for the Nau­tilus In­sti­tute for Se­cu­rity and Sus­tain­abil­ity. By Anthony J. Colan­gelo

At a se­cu­rity con­fer­ence late last month, the com­man­der of the U.S. Pa­cific Fleet was asked what he would do if Pres­i­dent Trump or­dered him “to make a nu­clear at­tack on China.” The com­man­der, Adm. Scott Swift, an­swered promptly that he would, fram­ing the is­sue as one of demo­cratic gov­er­nance and civil­ian con­trol of the mil­i­tary.

“Ev­ery mem­ber of the U.S. mil­i­tary has sworn an oath … to obey the of­fi­cers and the pres­i­dent of the United States as the com­man­der in chief ap­pointed over us,” he said.

But is that quite right? Isn’t there such a thing as an il­le­gal order? And if so, what kind of right or, more ac­cu­rately, what kind of duty ex­ists to dis­obey it?

Sec­ond point first: As a mat­ter of fact, it is il­le­gal to obey an ob­vi­ously il­le­gal order. In­deed, the law clearly re­jects the “su­pe­rior or­ders” de­fense. Col­lo­qui­ally put, the de­fense goes some­thing like this: “I can­not be li­able for car­ry­ing out an il­le­gal act be­cause I was sim­ply fol­low­ing or­ders.” At least since the Nazis were pros­e­cuted for war crimes and crimes against hu­man­ity at Nurem­berg, this de­fense has largely dis­in­te­grated.

If — con­tin­u­ing the Nazi par­al­lel — the “com­man­der in chief ap­pointed over us” tells mil­i­tary of­fi­cials to com­mit geno­cide, they can’t legally go along with it. Legally, they must say no.

But how can, say, the com­man­der of the U.S. Pa­cific fleet know if an order is so ob­vi­ously il­le­gal that he’d be held li­able?

Un­der in­ter­na­tional and U.S. law, the order must be “man­i­festly” or “clearly” il­le­gal, not just of de­bat­able or ar­guable le­gal­ity. What this means is that the per­son or­dered to launch or to plan the launch knows or should know that the order is il­le­gal. The Depart­ment of De­fense man­ual cites as an ex­am­ple fir­ing on the ship­wrecked. An order to shoot an in­no­cent civil­ian in the head also would qual­ify.

The kind of weapon used is, of course, ger­mane as well. The law of war — oth­er­wise known as hu­man­i­tar­ian law — is de­signed to pro­tect civil­ian life and re­duce suf­fer­ing even though, in­evitably, in armed con­flict there will be some amount of civil­ian death and suf­fer­ing.

Nu­clear weapons are ob­vi­ously more cat­a­strophic than con­ven­tional weapons. There­fore, any time the same or sim­i­lar mil­i­tary ad­van­tage can be gained by us­ing a con­ven­tional as op­posed to a nu­clear weapon, the le­gal thing to do is stick to con­ven­tional weapons. Us­ing the nu­clear op­tion in such a sit­u­a­tion ac­tu­ally con­sti­tutes a se­ri­ous vi­o­la­tion of in­ter­na­tional law. Fol­low­ing such an order is, in turn, a war crime un­der Ad­di­tional Pro­to­col I to the Geneva Con­ven­tions on the Law of War, which binds all states.

At least five unique char­ac­ter­is­tics omi­nously sep­a­rate nu­clear weapons from con­ven­tional weapons in ways that promise to in­crease civil­ian death and suf­fer­ing.

First, quan­ti­ta­tively, the blast power, heat and en­ergy gen­er­ated far out­strip that of con­ven­tional weapons. Sec­ond, the ra­di­a­tion re­leased is so pow­er­ful that it dam­ages DNA and causes death and se­vere health de­fects through­out the en­tire lives of sur­vivors as well as their chil­dren ex­posed in utero. Third, nu­clear weapons make im­pos­si­ble hu­man­i­tar­ian as­sis­tance to sur­vivors at the blast scene strug­gling to survive, lead­ing to more suf­fer­ing and death. Fourth, dam­age to the en­vi­ron­ment leads to wide­spread famine and star­va­tion. And fifth, nu­clear weapons cause long-last­ing multi-gen­er­a­tional psy­cho­log­i­cal in­jury to sur­vivors of the blast.

All of th­ese fac­tors weigh heav­ily against the hu­man­i­tar­ian goals of the law of war, which again is de­signed chiefly to pre­vent and re­duce civil­ian death and suf­fer­ing.

So any­one or­dered to plan or launch a nu­clear strike is on no­tice: An order to use a nu­clear weapon in­stead of a con­ven­tional weapon when the same mil­i­tary ad­van­tage can be gained by ei­ther gives rise to a duty to re­ject that order. To do oth­er­wise and follow the order would con­sti­tute a war crime for which the ac­tor could be held li­able.

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