What's a lawful order?

Prof, Dan Maurer sheds light on this core (and timely) issue of military law here on Lawfare. His conclusion:

Clarifying the definition of an “unlawful order” and making the disobedience of an unlawful order an affirmative duty is both legislatively feasible and a practical imperative, considering the contemporary challenges facing the military under an administration that routinely pushes on the boundaries of legality. The six recommendations above do not contradict any existing military case law or any existing provision in the UCMJ. Instead, they preserve the necessary “inference of lawfulness” while acknowledging the real-world influences that inform a soldier’s inferences, and they add a duty to seek confirmation of legality when in doubt. These recommendations together refine and codify language already found scattered across relevant provisions in the MCM. In other words, the only new thing Congress would create is clarity in a notoriously opaque area of military law at a time when definitions are essential to ensure the military itself remains subordinate only to lawful commands by civilian authority.

It is difficult, at this point, to speculate on whether Congress would actively consider such recommendations. However, it is not so speculative to say that President Trump would not sign such legislation into law, nor approve of these amendments to the Manual for Courts-Martial. These recommended reforms should spark an overdue conversation and serve as a template from which to build such reform when the political winds are more favorable.

Pakistan, civilians in military court

Nouman Ali, Fair Trial Rights under Military Jurisdiction: Constitutional and International Perspectives from Pakistan and the UK. IX Int'. J. Res. and Innovation Soc. Sci. (IJRISS), October 2025.

Abstract

The rule of law and right of a fair trial and judgment forms the cornerstone of constitutional democracy. The eighteen amendments of constitution of Pakistan, Article 10A (2010) shipped the process from a judicial principle into a constitutional guarantee. This study aims to examine how these constitutional guarantees operate in practice when civilians are tried in military courts, using a comparative approach. however, the chronic trial of civilians before military courts continues to this guarantee. Basically, this is designed for maintaining discipline for the military, but these courts have enlarged their jurisdiction and include civilians blamed of terrorism also do wrong offences against state security. This study shows how Pakistan resolves its military jurisdiction through international obligations and national constitution to ensure a fair trial. This study examines Pakistan's legal and constitutional framework, as well as Britain’s neighboring Findley (sic). International human rights level Article 14 of the International Covenant on Civil and Political Rights and the general recommendation of the United Nations Commission on Human Rights 32. The study shows Pakistan’s main structural defects: the discreet methods, command influence, weak appeal rights, the absence of civilian oversight and explanation for legislation, and gaps in judicial and institutional processes. Comparative study with the British demonstrates that operational discipline and judicial freedom can coexist within constitutional checks. This article shows the reform structure proposing self-reliance appellate procedure, and also show governance reforms, and the supervision of parliament to match Pakistan’s military lawfulness with domestic fair trial and international fair-trial standards.

It thus recommends an independent appellate process, enhanced civilian oversight, and stronger parliamentary supervision to align Pakistan’s military justice with domestic and international fair trial standards.

Military v. civilian court jurisdiction in Indonesia

This article in the November/December 2025 issue of the International Journal of Management Studies and Social Science Research addresses the tension between the civilian and military court systems in Indonesia for offenses committed by military personnel. Excerpt:

Article 65 paragraph (2) of the TNI Law states that TNI soldiers are subject to military justice if they commit violations of military law, while for general crimes, the resolution is carried out in accordance with statutory regulations. This norm emphasizes that not all actions of soldiers fall under military jurisdiction, so the distinction depends on the type of crime committed. In practice, the absolute competence of general courts over general crimes committed by TNI soldiers has not been fully implemented. This occurs because Law No. 31 of 1997 has not been revised and still gives broad jurisdiction to military courts. This conflict of norms gives rise to dualism which has an impact on the difficulty of determining the appropriate forum when soldiers commit general crimes.

The authors conclude:

The Absolute Competence of Military Courts Over Criminal Acts by TNI Soldiers Has Not Been Fully Implemented The absolute competence of general courts over general crimes committed by TNI soldiers has not been fully implemented. This is because Law No. 31 of 1997 has not been revised and still grants broad jurisdiction to military courts. This conflicting norm has given rise to a dualism that makes it difficult to determine the appropriate forum when soldiers commit general crimes. The implementation of Article 65 paragraph (2) of the TNI Law has not yet fully proceeded as expected. Various normative, institutional, technical, and cultural obstacles still hinder the transfer of authority for examining general crimes by TNI personnel to general courts. Furthermore, the lack of regulatory harmonization and poor inter-institutional coordination have reinforced the status quo, thus preventing significant change in the military criminal justice system.Taking these findings into account, this study believes that strategic regulatory, institutional, and operational measures are necessary to optimally achieve the objectives of legal reform.

Military justice in modern history

This extensive (386-page) tome, edited by Kelly Maddox, Tino Schölz, Nicolas Stassar, and Urs Matthias Zachmann, includes numerous essays of interest and can be downloaded here. The book's subtitle is "The Adjudication of War and Violence in a Globalising World." From the front matter:

This volume derives from a conference on comparative military justice hosted at Freie Universität Berlin in July 2022 as part of the project “Law without Mercy: Japanese Courts-Martial and Military Courts during the Asia-Pacific War, 1937–1945”. This project’s principal aim has been to advance the historical understanding of the inherent reasons and mechanisms of mass violence during the Asia-Pacific War and the role that military justice played in it. For more information, please visit https://www.lawwithoutmercy.eu/. The project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement no. 819892). It was also financed in part by the open access fund for books of Freie Universität Berlin.

Conditioning public access to courts-martial

ChosunBiz reports here on a recent decision of South Korea's National Human Rights Commission. At issue was, among other things, whether spectators at a court-martial could be required to sign a pledge not to bring in their cellphones during proceedings. Excerpt:

[T]he NHRC said it determined that "the Court-martial's requiring the submission of a pledge when entering a military unit" lacks a legal basis and could infringe on freedom of conscience under the Constitution, and that "the current environment for observing military trials" could undermine the effective guarantee of the constitutional right to know and the principle of open trials.

The NHRC conveyed the opinion to the Minister of the Ministry of National Defense that, instead of a pledge, there is a need to receive the submission of a "guidance and acknowledgment form on the protection of military secrets, etc." and to issue a copy. It added that it is also necessary to prepare and implement measures to enhance spectators' accessibility to the Court-martial (a mid- to long-term roadmap, such as installing an off-base entrance for the Court-martial).

The Commission's last point is interesting. At the UK's Military Court Centres, it is possible to enter the courtroom area directly from a public parking lot. From the government website:

The courts are located on the perimeter of a military establishment. This design provides public access to the Service Courts. The public entrance is staffed by the personnel from Military Provost Guard Service who employ security screening checks as a condition of entry.