Reforming Military Obedience: Strengthening Vertical Checks on Trump’s (Ab)use of War Powers

[Dr. Ellen Nohle is a senior legal advisor at IHL Centre]

Trump’s second term in office has only augmented a set of concerns I raised in a monograph published following his first term (When Military Obedience and Restrictions on War Powers Collide: A Case for Reform, Edward Elgar, 2024). The bombing of nuclear sites in Iran in June 2025, ongoing lethal maritime strikes on vessels in the Caribbean Sea and eastern Pacific Ocean, the military operation against Venezuela and seizure of President Nicolás Maduro and his wife in January 2026, and the deployment of US troops in US cities have reignited questions about the U.S. president’s power to order American soldiers to act contrary to international and constitutional law. With Trump’s repeated threats to take over Greenland, the incongruous has become an actual concern: could American soldiers be duty bound to invade a NATO ally that poses no threat to the security of the United States?  

Over the past centuries, the authority of governments to take military action has gradually been circumscribed by international and constitutional law rules that, at their core, seek to safeguard the socio-moral values of peace, democracy, and respect for human dignity. For simplicity, I refer to these as the “legal force constraints” and summarize them as follows:

The function of the legal force constraints as limits on freedom of military action is undercut by two features of the US legal system (features familiar to many other jurisdictions as well, thus the broader relevance of the argument). The first is the weak enforcement of the legal force constraints against government decision-makers at the domestic and international levels. The failure to declare decisions on military action that contravene the legal force constraints as unlawful allows those decisions to live on and exert a normative influence based on their presumed validity.

The second feature is the disconnect between the legal limits on governments’ war powers, and the rules regulating soldiers’ behaviour. In brief, the rules defining what constitutes lawful action by soldiers do not fully reflect the legal restrictions on the government’s military authority. Although soldiers are only required to comply with “lawful” military orders and must disobey those that are “manifestly” unlawful (10 U.S.C. 890 – Art. 90; Manual for Courts-Martial United States IV-24; CIHL r 154), in determining whether an order is lawful, soldiers are only permitted to consider a subset of the legal constraints on government decisionmakers, notably the dignity constraints. Moreover, military orders are presumed to be lawful (e.g. United States v. Nieves, 44 M.J. 96, 98 (C.A.A.F. 1996); United States v. New, 55 M.J. 95, 105 (C.A.A.F. 2001)) and unless they are clearly unlawful (i.e. clearly in breach of dignity constraints), disobedience has been rejected as a means for soldiers to challenge the presumption of legality (e.g. United States ex rel. New v. Rumsfeld, 448 F.3d 403, 411 (D.C. Cir. 2006), citing United States v. Johnson, 45 M.J. 88, 92 (C.A.A.F. 1996)).

By denying soldiers the liberty to refuse military orders that violate certain fundamental restrictions on war powers, such as the international law prohibition of aggression and the constitutional requirement of collective decision-making to take certain military action, the law of military obedience (as it currently stands) in effect extends the powers of the president (and military commanders below him or her) beyond international and constitutional law limits, thereby weakening the legal protection of peace, democracy, and respect for human dignity.

While it does not put to rest all concerns raised by a megalomaniac president, a critical part of the collective response should involve reforming the law of military obedience so that it aligns with the constitutional and international law limits on governments’ war powers. In particular, soldiers should have a legally protected (and justiciable) right to refuse orders that require action in violation of any of the legal force constraints. 

A right to disobey orders that violate the legal force constraints rejects the archaic view of soldiers as blindly trusting implements of the state and affirms that they have an interest, worthy of legal protection, in ensuring that their actions do not undermine the rule of law or the values of peace, democracy, and respect for human dignity. Since the Nuremberg trials, international criminal law has recognised the individual responsibility of military agents for their own actions (Trial of the Major War Criminals Before The International Military Tribunal, pp. 52-53). However, the development of the legal attributes of soldiers based on a growing recognition of their moral agency has been lop-sided. The affirmation of the legal responsibility of military agents for doing wrong has not been accompanied by an affirmation of their legal right to do right, according to democratic societies and the international community’s own standards. 

Whereas some might fear that any loosening of the duty on soldiers to obey orders begets anarchy and the self-destruction of the State, I argue to the contrary that maintaining the status quo constitutes a threat to the rule of law and to peace, democracy and respect for human dignity. 

Discipline and obedience tend to be viewed as functional imperatives that enable the military to perform its protective function through collective military action that might not be in the self-interest of soldiers but are in the interests of society. In democracies, military obedience has furthermore become a political imperative as the principle of civilian supremacy and democratic control over the military implies that military agents have no right to challenge government decisions on military action. Yet, neither the functional nor the political imperative can justify a legal duty on soldiers to execute military orders that transgress the legal restrictions on government war powers. 

For one, military effectiveness is an instrumental good, the value of which depends on the legality of the military action itself, as the legal restrictions on war powers reflect basic socio-moral values. The legal force constraints can be understood as defining the outer limits beyond which military action lacks social value because it would jeopardize the basic values of peace, democracy, and respect for human dignity. By excluding certain activities from the domain of the government’s legal powers, such as aggression, and by requiring public deliberation and collective decision-making to authorize certain military actions, such as engagement in hostilities, the legal force constraints give effect to a political agreement about where the line is, beyond which military effectiveness no longer carries positive social value but the opposite. Military effectiveness can at most justify a qualified duty to obey, subject to the order-giver complying with the full set of legal restrictions on war powers. 

Moreover, the duty to obey only contributes to civilian and democratic control over military action to the extent that military commanders respect the conditions imposed by the people on the use of military force, as expressed in law. The duty to obey is an imperfect tool for civilian decision-makers to exercise control over soldiers, since the duty is owed to superior military commanders, not to the civilian government. Allowing soldiers to challenge military orders by reference to the same rules that circumscribe the military authority of government decisionmakers, and empowering courts to adjudicate such challenges, are the logical implications of a government ruled by law – where the rule of law extends to the domain of military action. Indeed, conditioning the duty to comply with military orders on compliance with the legal peace, democracy and dignity constraints would strengthen, not weaken, collective ownership over military force by giving soldiers access to public reasons in the form of the legal force constraints to assess the bindingness of military decisions that might have escaped public deliberation.

Giving soldiers a legal right to disobey transgressive orders would bring about a vertical redistribution of trust between military commanders and their subordinates. Such a redistribution of trust is arguably necessary if soldiers are to be able to correct for flaws in the institutional process producing an order; an essential function given the human, material and normative stakes involved when military action is pursued. The concern expressed by the international community over the development of autonomous weapon systems (AWS) has revealed a deep-rooted malaise about removing human judgment from the cycle of violence, including at the stage of executing orders. For example, Christof Heyns, then UN Expert on Extraterritorial Execution, called the use of force without reflection “mechanical slaughter.” One of the concerns expressed by Heyns, in comparing AWS with human soldiers, was precisely the lack of “ability of robots to distinguish legal from illegal orders.” The development of mechanical soldiers has, it seems, contributed to a greater recognition of the value of human judgment and common sense in human soldiers. Embracing that value requires granting soldiers the legal power to exercise their judgment and to challenge orders that their considered judgment informs them are unlawful. 

Aligning the law of military obedience with the legal restrictions on war powers will not only mitigate the risk of abuse of war powers and the erosion of the legal protection of peace, democracy, and respect for human dignity. It will also affirm the human dignity of soldiers, protecting them against being compelled to act contrary to the basic socio-moral values underpinning the legal constraints on war powers. Granting soldiers a legal right to disobey orders that they honestly and reasonably believe are beyond the legal powers of the order-giver would empower soldiers to protect themselves against being used as means to unlawful ends and against the significant moral injury they might suffer as a result. 

Possible concerns that increasing soldiers’ legal privilege to refuse ultra vires orders would undermine a nation’s ability to defend itself militarily is belied by psychological research showing that soldiers fight primarily out of regard for their comrades and superiors, not out of a sense of legal compulsion . In fact, research on compliance with orders shows that ordinary people tend to err on the side of obedience rather than disobedience, even in the absence of a legal duty to obey. In light of that, the function of the law should be to help and incentivize soldiers to identify and challenge abuses of war powers, not punish those who have the moral courage to resist the potent socio-psychological pressures to comply with orders irrespective of their legality. 

Still, the redistribution of trust entailed by granting soldiers a right to disobey ultra vires orders will no doubt come up against some deep-rooted assumptions, and opposition to the proposal is to be expected. The assumption in the military has long been that trust must be distributed along the hierarchy of command. Absolute trust, in the form of decision-making power, is vested in the president as commander in chief, and subordinate commanders are trusted based on their relative position in the military hierarchy.  Although the military in many ways operates as a separate community, legally and socially, from the rest of society, the military’s existence and powers derive from the civilian government and its functions are defined by civilian-made laws and policies. The economy of trust in the military must therefore ultimately bend to the economy of trust in civilian society. A rule requiring absolute trust in the commander in chief is incompatible with the limited institutional trust, or decision-making powers, vested in the president as chief executive. If uncritical obedience has no place in a government ruled by law, then neither does it have a legitimate place in the government’s executive arm, the military.

Photo attribution: “A man wearing military uniform” by George Pak on Pexels