Abstract
The defence of superior orders determines the legal liability of soldiers who obey the illegal orders of their commanders. The availability of this defence has implications for not only the soldiers’ criminal culpability but also whether they will be labelled ‘war criminals’. Understanding the law is an essential prerequisite to understanding how the law should be applied to its environment. The criminal liability of soldiers for obeying the illegal orders of their commanders is fundamentally a legal question. For this reason, it is important to analyse the law itself. Examining the law independently allows us to determine the strengths and weaknesses of the law and to provide insights into how the law should be developed. To accurately apply the law, we need to understand the environment to which the law will be applied. This chapter examines the law to determine whether it is an effective law. Chapters 4–6 address the environmental contexts. An effective law has certain characteristics. For example, it needs to be clear, sufficiently constant and adequately consistent with other laws and it should be known and understood by those who are bound to obey it (Fuller 1969, 184–7). If the law lacks these characteristics, then it is weakened. This chapter highlights that there are notable inconsistencies and ambiguities within the defence of superior orders. These inconsistencies and ambiguities include that key concepts are not defined, various and inconsistent standards are adopted across jurisdictions and courts, the complexity of the laws of war affect the clarity of the law and even seemingly clear rules of law can be obscured when applied to the complicated and dynamic context of war.
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Notes
- 1.
Lon Fuller maintains that an effective law contains the following eight principles: rules must be clear, rules must be consistent with each other, rules must be known to those who must obey them, rules must not be abusively retrospective, rules must be understood, rules must remain sufficiently constant, rules must only demand what is possible and there must be sufficient congruence between the rules as announced and their actual administration.
- 2.
In general, the Rome Statute (1998) does not govern these states or their soldiers. However, the Rome Statute (1998, art. 12(2)) provides that a national of a state not party to the Statute may still come within the ICC’s jurisdiction if the national commits the alleged offence on the territory of a state party to the Statute.
- 3.
Some scholars argue that the inconsistencies between international conventions, such as the Nuremberg Charter, the ICTY Statute and the ICTR Statute and the domestic law of many nations, on the defence of superior orders are not as diverse as it might first appear. Most developed nations’ military manuals and national courts exclude manifestly unlawful orders or its equivalent from the defence (see Bassiouni 1999, FN 17, 452, 476; Gaeta 1999, 176–7, 183; Green 1976 b, 71; Osiel 1998, 981–2). The Nuremberg, the ICTY and the ICTR trials predominantly dealt with crimes that would have fallen within the manifestly unlawful exemption to the defence. Thus, even if they had recognised the defence, the results should have been the same (Osiel 1998 982). Indeed, at the Nuremberg Trials, the French, British and Russian prosecutors interpreted the Charter (1945, art. 8) to mean that the defence of superior orders was not available because of the palpable unlawfulness of the Nazi orders as opposed to excluding the defence categorically (Gaeta 1999, 180). Furthermore, national law on the defence of superior orders pertains to a much wider range of potential offences than international law. International law is generally focused on war crimes whereas national law is concerned with everything from minor disciplinary offences to grave violations of international law. This explains the adoption of the conditional liability approach in national systems and the absolute liability approach by the Nuremberg Charter and the ICTY Statute and the ICTR Statute (Gaeta 1999, 183). In this way, the inconsistencies between international and national law in respect to the defence of superior orders may not be as considerable as they initially seem.
- 4.
Gaeta maintains that national legislation and case law and, therefore, customary international law actually supports the absolute liability approach for the prosecution of war crimes. The Rome Statute’s adoption of the conditional liability approach therefore conflicts with customary international law and previous international conventions. However, there is no well-grounded rationale for this divergence; see Gaeta (1999, 172, 183–6).
- 5.
- 6.
An example of where a manifestly illegal order may appear justified to a reasonable soldier is the use of torture. While torture is widely regarded as illegal, some argue that its use in extreme and exigent circumstances may be justifiable to obtain information that will save many lives; see Osiel (1998, FN 114). The use of torture to extract information in even extreme situations has been criticised by many though.
- 7.
- 8.
Bourke is referring to Marine Lieutenant Philip Caputo’s account of the Vietnam War.
- 9.
In cases of severe punishment, the defence of superior orders interconnects with the plea of duress; see Gaeta (1999, 173).
- 10.
Professor Peter Rowe is examining the attribution of responsibility between the UN and states providing military support to UN missions. He notes that the UN commanders do not have the same control that a commander generally does and cannot enforce their orders through the national contingent’s chain of command. He also points out that many states have placed caveats on their military’s participation in certain missions; see Rowe (2010, 73–4).
- 11.
An example of conflicting laws is seen in the national law of the USA and international law on the defence of superior orders. International law allows the defence of superior orders unless the order was manifestly unlawful, whereas the USA’s law upholds the defence unless a reasonable person would have known that the order was illegal. In this regard, international law requires a lower knowledge standard and is more favourable to the soldier than the USA’s law. Therefore, American soldiers could be liable under the USA’s law for obeying an order from their UN commander where the order’s illegality, although not manifestly unlawful, would have been known to a reasonable soldier under the circumstances. Situations like these arose in Bosnia, where UN commanders ordered American soldiers to assault civilian objectives where the civilian nature of the target was reasonably apparent; see Osiel (1998, 971–2, 984) and see also de Waal (1995, 10).
- 12.
Asymmetrical warfare is warfare where the opponents have substantially different military power, resources, strategies and tactics.
- 13.
There appears to be a growing need in modern warfare for soldiers to have situational awareness and practical judgment and to exercise good reason. This move away from the traditional model means that the soldier on the ground may have greater knowledge of the surrounding circumstances and whether the target is a military objective or a military necessity. This is especially so as advances in technology allow soldiers to gather information more readily. Soldiers are accordingly in a better position to know whether an order is manifestly unlawful or indeed even unlawful. This would affect when and whether the defence of superior orders could be successfully raised.
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O’Sullivan, C. (2016). The Law Surrounding Obedience. In: Killing on Command. Critical Criminological Perspectives. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-49581-5_3
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