The Duty to Disobey: The Law of Conscience and Compliance in Armed Conflict

Abstract

In an era of perpetual war, service members are required to follow orders with significant legal and moral consequences. Several high-profile cases, however, call into question the limits of the soldier’s duty. In 2006, First Lieutenant Ehren Watada refused to deploy to Iraq because of legal and moral objections to the underlying conflict. More recently, Captain Nathan Smith sued President Obama in federal court, claiming the conflict against the Islamic State terrorist organization was not properly authorized by Congress. Since early 2016, then Republican Presidential candidate Donald Trump made multiple proposals to combat terrorism by targeting civilians and committing torture. If confronted with such orders, under what circumstances do service members have a duty to disobey? This article examines the obligations of service members, focusing on Lieutenant Watada, Captain Smith, and others like them who objected to specific armed conflicts on legal and moral grounds. Specifically, this article seeks to answer whether state adherence to the jus ad bellum and jus in bello is condition precedent for soldiers’ obedience to orders. A preliminary examination of these issues reveals that soldiers have a legal obligation to disobey unlawful orders during armed conflict (e.g., targeting civilians, torture), but there is no equivalent legal obligation to disobey orders to deploy in support of a war that is—from the soldier’s perspective — unlawful. The state is also interested in avoiding widespread disobedience. A behavioral studies approach suggests that compliance can best be achieved through internalization of norms, opportunities for constructive dissent, and stricter adherence to the jus ad bellum. This article will appeal to national security practitioners, decision makers, and scholars. The relevance to national security is evident by seeking methods to gain greater compliance from soldiers and more prudent strategic level decisions regarding armed conflict. More broadly, the examination of compliance theory to individual behavior is applicable to multiple disciplines and any large organization. The examination of the soldier’s obedience is particularly timely when the United States is engaged in what some describe as a forever war.