Duty to disobey unlawful orders -- a case from South Korea

What to do when an order is unlawful? A recent decision from South Korea addresses this timely question:

The court stated, “Colonel Yu was clearly aware that the superior’s order was illegal, and it appears he only brought a minimal number of personnel for a formal deployment,” adding, “It is not reasonable to evaluate that he followed an illegal order merely based on the fact that he deployed.” The court further stated, “Passive resistance is also a way to confront illegal orders.” The court added, “Realistically, it is difficult to expect all soldiers to risk danger and firmly refuse orders,” and “They can choose not to properly cooperate by delaying or scaling down the execution of orders.”

Steve Vladeck on "Reining in Military Jurisdiction"

On Prof. Steve Vladeck's One First Supreme Court blog, an overview of issues around the scope of military court jurisdiction can be found here.

Did they know, and does it matter? : US Court of Appeals for the Armed Forces to decide on permissive inference of a positive marijuana drug test

 

The Marijuana Herald reported that the United States Court of Appeals for the Armed Forces is set to hear the review of an Air Force member to determine whether a positive marijuana drug test of a service member is sufficient to prove that the member knowingly consumed marijuana.

The two questions of law to be considered by the court are as follows:

I. Whether the permissive inference is unconstitutional for marijuana cases, both facially and as applied to this case. 

II. Whether Appellant's conviction for marijuana use is legally insufficient.

Read more here. 

Suicide bombing case from Nigeria

The Supreme Court of Nigeria has handed down an interesting unanimous decision on dereliction of duty arising out of a suicide bombing that occurred in 2012. Passing over the question why it took 14 years for the matter to be investigated and adjudicated, the decision reveals some serious weakness. The government's evidence consisted of hearsay testimony by the investigting officer and out-of-court admissions by the accused. There were three issues, the first two of which were, in the Editor's opinion, frivolous and properly rejected. The third went to whether the government had proven the accused's guilt beyond a reasonable doubt. Held, per Adamo Jauro, J.S.C., "[t]he evidence established that the respondent had completed his sentry duty and was taking his breakfast when the attack occurred. There is no evidence of any duty that the respondent neglected to perform or negligently performed after 12 noon on 7th February, 2012." The case is Nigerian Army v. Friday, No SC/CR/987/2017 (Nigeria Sup. Ct. July 10, 2026).

Reform proposal in Spain

The Spanish State Attorney General's Office is proposing a project for the reform of military justice. Details can be found here. (Google Translate will help.)

The overall thrust seems to be to modernize Spanish military justice and bring it into closer alignment with civilian criminal procedure.

Global Military Justice Reform hopes to follow this matter closely. Readers are invited to comment as the project unfolds. (No anonymous comments, please.)