When a soldier may disobey a commander’s order, and how to proceed
Contents
- Signs of an unlawful order
- What to do if you receive an unlawful order
- Cases where a complaint cannot be lodged
- A clearly criminal order: what to do and liability
The Criminal Code of Ukraine provides for liability for insubordination and failure to carry out an order. At the same time, the law allows for situations where a serviceman may refuse to carry out an order or report it to the command.
Signs of an unlawful order
The assessment of an order’s legality depends on the specific circumstances. A serviceman’s disagreement with the appropriateness or effectiveness of an order does not mean that it is unlawful.
An order is considered unlawful if it is issued beyond the scope of authority or in breach of established procedure, contradicts legislation, or restricts constitutional rights and freedoms. A criminal order is a type of unlawful order and entails actions or inaction for which criminal liability is established.
This refers to cases where the criminal nature of the order is obvious to all parties. Examples include violence against the civilian population, robbery, looting, or actions against prisoners of war.
Procedure for dealing with an unlawful order
A serviceman is obliged to carry out the commander’s orders, with the exception of those that are clearly criminal. This is provided for in Article 60 of the Constitution of Ukraine.
If there are doubts regarding the legality of an order, lawyers advise first approaching the commander to request clarification. To do this, a report must be prepared, setting out the circumstances that may indicate the order is unlawful.
The report must not contain a direct refusal to carry out the order. The document is submitted to the commander who issued the order, and a copy is returned with a receipt stamp bearing the date, signature and surname.
If, after this, the demand to carry out the order remains, the soldier may submit a written complaint to the relevant officials or military authorities or law enforcement agencies.
Cases where a complaint cannot be lodged
At the same time, lodging a complaint does not exempt a soldier from the duty to carry out the order. It is prohibited to lodge complaints whilst on combat duty, in formation, on guard duty, on daily duty or during training.
A written response is provided following consideration of the complaint. If a serviceman disagrees with the decision, he may appeal it in court.
A clearly criminal order: what to do and liability
In the case of a clearly criminal order, the procedure is different. The serviceman must also submit a report requesting clarification of the order and setting out the circumstances indicating its criminal nature.
If, after this, the commander insists on compliance, the serviceman has the right to refuse to carry out such an order. This must be reported to the commander and his immediate superior in the form of a report stating the reasons.
It is also recommended to contact the Military Law Enforcement Service of the Armed Forces of Ukraine via the helpline or hotline.
The commander bears responsibility for the order given and its consequences. Failure to carry out a clearly criminal order is not considered insubordination or failure to carry out an order and does not entail criminal liability.
At the same time, carrying out such an order may lead to criminal liability on general grounds. In certain cases, a person may be exempt from liability if they were not aware of, and could not have been aware of, its criminal nature.
