“Superior legal systems demonstrate that there is no

“Superior orders ought never to amount to a defence to an international crime.”The defence of superior orders has been the subject of debate for decades. The different absolute and conditional liability doctrines which characterize modern national legal systems demonstrate that there is no true consensus regarding how best to approach this defence. This debate is illustrated on an international level as well, where the absolute liability principle originally enshrined in Nuremberg seems to have been discarded in the last decade. The author will argue that despite the strong position initially taken by the international legal system in favour of absolute liability, the doctrine has proven to be largely unsatisfactory and burdensome to subordinates with the effect of undermining military discipline. The author will then consider how the current approach adopted in Article 33 of the Rome Statute allowing a limited defence of superior orders is justifiable. Thirdly, the author will appraise whether a separate defence of superior orders is necessary in light of other admissible defences such as mistake of law and duress. Taking everything into account, although superior orders ought never to amount to a defence to an international crime, the need to balance competing interests requires that a limited defense persist. The doctrine of absolute liability: the initial position of international law The principle of absolute liability that there should never be a defence of superior orders emerged from the Nuremberg Trials, developing alongside the nascent framework of international law. In the High Command Trial, the US military court concluded that recognizing such a defence would result in an absurd subversion of justice and undermine the supremacy of law. Because all of the defendants “held official positions in the armed forces of the Third Reich” and could transfer blame to an individual higher up in the chain of command indefinitely, the defence would have the practical effect of saying “that all guilt charged…was the guilt of Hitler alone”. Fritz Sauckel, for instance, was held responsible for forcefully recruiting workers into slave labour and keeping them under extremely harsh conditions without pay or food. If the court had accepted his plea of superior orders, Sauckel could have escaped liability by placing blame on other senior officers who had given him the orders. So far from it being unjust to punish Nazi officers who were simply obeying orders, it would be unjust if the wrongs committed were allowed to go unpunished and no one was found guilty. Article 8 of the Nuremberg Charter serves to illustrate the court’s position, stipulating that obedience to superior orders can reduce the accused’s punishment and responsibility but cannot form a part of a substantive defence in itself. The jurisprudence of several other military tribunals created to prosecute international crimes, such as the International Criminal Tribunals of the Former Yugoslavia and Rwanda, have both followed and provided support for the Nuremberg model: Article 6(4) ICTR and Article 7(4) of the ICTY state that obedience to superior orders is only relevant for mitigating purposes. The Nuremberg principle was reaffirmed in Article 6 of the Charter of the International Military Tribunal at Tokyo, and finds further support in the exclusion clauses outlined in the United Nations High Commissioner for Refugees (UNHCR) where a person who has been denied refugee status cannot claim ‘superior orders’ as a defence. According to Yoram Dinstein, the defence has only ever successfully acquitted the defendant in “one case among those published in the law reports of the United Nations War Crimes Commission”. Notwithstanding, the plea in this ‘unique case’ was not upheld as a proper defence but considered by the court as an additional factual element to reduce the accused’s responsibility. Principle IV of the Nuremberg Principles provides a second formulation of the absolute liability approach, stipulating that obedience to superior orders cannot free the accused from responsibility “provided a moral choice was in fact possible to him”. The language and terminology utilized by the judges in subsequent case law demonstrates that even a soldier, who is usually considered as part of a military unit rather than an individual, has a moral choice whether or not to follow unlawful orders. In the case of Ensign Maxwell, the plea of a soldier in the Napoleonic wars who shot a French POW was rejected as “every officer has a discretion to disobey orders against the known lands of the land”. The court in Llandovery Castle arrived at a similar conclusion, contending that a “commander’s order does not free the accused from guilt”. It thus follows that the obedience of a subordinate is not that of an automaton, but a reasoning agent who is capable of independent rational thinking. The tribunal in the Einsatzgruppen case reaffirms this by stating that a soldier is “not expected to respond like a piece of machinery” and is not “required to do everything his superior officers order him to do”. Absolute liability thus promotes the supremacy of the law by ensuring that wrongs will never go unpunished, and that a person who has committed an illegal act will always be found liable. Issues with absolute liabilityNevertheless, this approach has insurmountable weaknesses: by pursuing and promoting the supremacy of the law, absolute liability fails to meet the demands of military discipline and over extends moral blame to all subordinates. Firstly, the meaning and scope of the expression ‘where a moral choice was in fact possible’ is unclear. The phrase had not generally been used in international or national legal systems until then and generated much uncertainty. Some commentators suggested that ‘moral choice’ related to the question of whether or not the accused was conscious of the illegality of their conduct; some others believed it concerned whether or not the illegality of the conduct had been manifest, while others still submitted that the phrase related to whether the accused had been under coercion. Absolute liability encourages insubordination and undermines military discipline, which requires the “total and unqualified obedience to orders without any hesitation or doubt”. The principle incorrectly assumes that the illegality of an act?where a moral choice was in fact possible?is palpable and easily discernible to the subordinate when this may not always be the case. The acts committed by the accused in the Nuremberg trials were of such an exceptional and evil nature that the question of their illegality was never addressed by the courts and they were accepted at face value. Although the illegality of the Holocaust may have been palpable, the notion of moral choice did not set a clear precedent as to what exactly constitutes an illegal act. By virtue of the chain of command structure within a military hierarchy, a subordinate simply does not have have the same access to intelligence or material knowledge as their superior in order to determine the lawfulness of an order. A superior requires greater understanding and knowledge of the law in order for to make the right decisions and direct the military unit effectively. As Dinstein described, every order carries a presumption of lawfulness because “obedience to orders is the first duty of a soldier” and “he cannot discuss or question the commands that are given him as he is not the judge of their legality or illegality”. However, absolute liability refutes this presumption by placing the burden of assessing the illegality of an act on the subordinate, thus encouraging insubordination and undermining military discipline. With the threat of liability looming above their heads, soldiers would begin to question their commander’s judgement and hesitate before following orders, a prospect which could interfere with the success of a military operation. In addition, absolute liability places the soldier in a difficult position where they must essentially make a choice between two evils, either “liable to be shot by a court martial for disobeying an order” or “be hanged by a judge and jury for obeying an order” which violates international law. Furthermore, absolute liability over extends moral blame to all subordinates following orders without considering whether or not they had the mens rea element of the crime. By denying them the opportunity to negate they possessed mens rea, a person who obeys an order without knowing that it is illegal is as culpable in the eyes of the law as someone who committed an illegal act knowingly and with zeal. Dismissing the defence of superior orders during the Nuremberg trials was necessary to achieve justice due to the high positions of authority held by the accused, but it does not follow that a person should never be allowed to claim the defence. This issue was recognized by Judge Jorda in Erdemovic, who asserted that the “precedent setting value of the judgement should be reduced in the case of an accused of low rank”, demonstrating that there ought to be a limited defence of superior orders in certain circumstances.Applying the absolute liability principle: case study of Ehren WatadaThe legal proceedings against Ehren Watada in the United States exemplify the limitations of the absolute liability approach and demonstrate why a limited defense of superior orders is necessary and justified in certain circumstances. Watada was a military officer who refused orders to deploy his military unit in Iraq due to his belief that the war was illegal and would be a “violation of Nuremberg Principles and the US Constitution”. He argued he had a “duty to disobey unlawful orders” pursuant to international law, and his beliefs were well founded given that the international community had firmly declared the US led invasion of Iraq to be an illegal act that contravened the UN Charter. In addition, the invasion was publicly condemned by many prominent figures including Nelson Mandela, Pope John, Lord Bingham and former US President Bill Clinton. Despite such strong international support confirming the act was illegal and in clear violation of international law, Watada was discharged and imprisoned under national law for disobeying the order as the US claimed that the war was legal. It is clear that subordinates can be held accountable for committing crimes under the guise of ‘obeying orders’, but expecting them to distinguish between a lawful and unlawful order simply does not reflect the demands of military discipline. As demonstrated in Watada’s case, the soldier’s beliefs are irrelevant because it is ultimately the superior who decides whether or not the act is illegal. The acts of torture perpetrated by American forces during the Bush era were equally justified as part of an officially sanctioned program “approved at senior levels of the US government”. Similarly, the atrocities committed against the Herero and Jewish populations by Germany in the 20th century were the product of government policy and were thus not illegal per se. Applying the principle of absolute liability and insisting that there should never be a defence of superior orders fails to reflect the demands of military discipline enshrined in national legal systems and presents a soldier with a choice between two evils.Various judgements in national legal systems have considered the issue of the superior orders defence and determined that a limited form of immunization from liability is a “well established principle of law” to protect a soldier obeying orders which are “not necessarily manifestly illegal”. In Keighly v Bell?a British case from the 20th century?the court held that superior orders “are an absolute justification in times of war”, and an officer acting under the orders of a superior is thus justified. In another example, United States v Bright, the court stipulated that “great indulgences must be extended “to the acts of subordinate officers done in obedience to their superiors” in a state of war. Although the views expressed were not standardized as part of customary international law and did not set any precedent in national legal systems, they demonstrate that the Nuremberg principle was found wanting from its inception and national courts recognized immunity by obedience of superior orders. It is important to note that the respondeat superior approach promulgated by many states prior to WW2 which upheld military discipline above all else, was found to be similarly wanting. This doctrine granted soldiers complete immunity from liability to ensure their “total and unqualified obedience to orders without any hesitation or doubt”, but in so doing allowed war crimes go unpunished. These two diametrically opposed doctrines demonstrate that any extreme approach to the defense of superior orders is impracticable and a nexus between the competing interests of different legal systems should be adopted in international law. Customary international law and conditional liabilityCustomary international law is defined in Article 38(1)(b) of the International Court of Justice Statute as “evidence of a general practice accepted as law,” referring to the general practice of states and the opinio juris, what states have accepted as law. Although the Nuremberg trials demonstrates that the absolute liability approach was initially enshrined, the customary rule has gradually evolved to accommodate the general practice of many national legal systems, which shows a clear preference for the conditional liability approach. Article 33 of the Rome Statute, which established the International Criminal Court, allows superior orders to be invoked as a legitimate defence instead of a mere factual element to mitigate punishment, correcting many of the deficiencies in the Nuremberg approach. The inclusion of this defence in the statute was regarded by many NGOs and human rights groups as a weakness of international law, limiting the International Criminal Court’s ability to prosecute crimes. Despite these objections, it is important to note that the true position of international law has not changed, as Article 33 maintains the presumption that there is no defence of superior orders to begin with. The onus is on the accused to prove they were a) under a legal obligation to obey orders of the Government or the superior in question, (b) did not know that the order was unlawful, and that (c) the order was not manifestly unlawful. Only when all three of these conditions have been satisfied will the defence of superior orders acquit the accused. The limited defence of superior orders introduced by Article 33 balances the demands of military discipline underlying national legal systems on one hand, and the need to uphold international law on the other hand. The mens rea requirement Article 33(1)(a) allows a person to negate they possessed the required mens rea element of a crime. This proviso reflects the importance of military discipline and acknowledges the prima facie presumption that an order given by a superior is lawful. More importantly, this proviso ensures that ordinary soldiers can rely on the defence, while officers of a higher rank who knew or reasonably should have known that the act was illegal cannot escape liability. Applying Article 33 to the Nuremberg Trials, and the Yugoslavia and Rwanda tribunals would have no effect on the case as a plea of superior orders by the senior officials on trial would equally have been rejected on these grounds. ‘Manifest Illegality’The concept of manifest illegality in Article 33(1)(b) significantly removes the burden placed on subordinates by setting a very high standard of illegality. Although the Nuremberg approach regards the soldier as a ‘reasoning agent’ and not a ‘piece of machinery’, conditional liability acknowledges the “immediate obedience” that is expected of soldiers. This resolves the soldier’s dilemma faced by Watada as a subordinate will only incur liability in extreme cases, for acts which are ‘manifestly unlawful’ and palpably illegal. A soldier can reasonably assume that the majority of orders given by superiors will be legal because the standard of illegality required to annul the duty of obedience is so high.The meaning of ‘manifest illegality’, unlike the phrase “where a moral choice is in fact possible”, has been clarified by numerous academics and significantly expanded upon in subsequent case law. The court in Kafr Kassem asserted that a manifestly unlawful order is of such an egregious nature that it “pierces the eye and revolts the heart” and waves a “black flag” above it warning that the act is prohibited. In order for a soldier to incur liability, they must have followed an order “contrary to the principles of humanity” and which “offends the conscience of every reasonable, right thinking person”. The concept is further clarified in the Treaty itself, which establishes in a concrete, textual and categorical manner that genocide and crimes against humanity are ‘manifestly illegal’ under article 33(2), ensuring that the rule of law is upheld and that people who have perpetrated the worst crimes will be punished. The effects brought about by this textualized definition are best exemplified in United States v. William L. Calley, a case concerning a soldier who participated in the killing of hundreds of unarmed women and children in the My Lai (Song My) massacre. Calley contended that “the orders he received to kill everyone in the village were not palpably illegal” because he had been told by a superior that “only the enemy would be in the village” and he believed he was pursuing a legitimate military objective. The implication that these innocent and unarmed civilians carried weapons and could counterattack blurred the discernible illegality of the act. However, the facts show that there were no such attempts to attack the soldiers, and that the the civilian population were all gathered in a ditch without weapons and no way to defend themselves. The court declared that manifest illegality is determined on an objective basis and that Calley should have recognized the illegality of the act as a “‘consequence of his age, grade, intelligence, experience and training” when he saw the civilians were not, in fact, dangerous or armed. Calley’s personal appreciation of the situation was irrelevant and his plea of superior orders was firmly rejected by virtue of Article 33. Recognizing a limited defence did not have the effect of perverting justice and allowing Calley to escape liability for his crimes. While absolute liability defeats his plea automatically, the objective test of ‘manifest illegality’ acknowledges the pressures that Calley faced in the battlefield as a soldier expected to obey without hesitation, and his reasonable confusion over the legality of his superiors orders to kill the enemy, without compromising the supremacy of the law. Furthermore, the concept of manifest illegality justifies and gives form to many of the judge’s ambiguous statements in case law, particularly regarding the Nuremberg Trials. Alfred Eichmann, for instance, attempted to argue that he was compelled by his superior to follow orders and participate in the killing of thousands of innocent Jews in WW2. His plea was rejected because the order for physical extermination was manifestly unlawful: not only was it objectively “contrary to the basic ideas of law and justice”, but Eichman’s own statements in the trial demonstrated he was aware that the order was “one of the gravest crimes in the history of humanity” and that he realized it was “something unlawful…terrible”. The order to torpedo a hospital ship and fire at survivors was thus ‘manifestly illegal’ in the Leipzig War Crimes Trials, as was the order to shoot and kill an elderly Vietnamese citizen in United States v. Keenan. Prior to Article 33, it was unclear whether or not the use of the term ‘manifest illegality’ by judges established any clear precedent. Is it even necessarySome argue that if the main issue underlying the Nuremberg principle of absolute liability is that it overextends moral blame and imposes liability on a subordinate without a guilty mind, there are other defences which overlap significantly with superior orders and can be raised in its place. As previously stated, although obedience of superior orders cannot constitute a substantive defence it is nonetheless considered by the court as a factual element relevant to other admissible defences. The international legal system has already adopted a broad approach in the form of Article 32, which allows the accused to negate they possessed the mens rea element of a crime on the basis that they had made a mistake of fact or law. The issue herein lies in the fact that the defence of superior orders relies on the same reasoning: a soldier makes a mistake of law if they obey an unlawful order but fails to appreciate its illegal character. Similarly, an order might contain an assertion of fact leading the accused to believe that their conduct is not unlawful. Some commentators thus argue that the defence of superior orders falls within the scope of Article 32, and raising the plea as a separate defence is thus unnecessary and weakens the supremacy of the law further by expanding the circumstances in which a person may avoid criminal liability. Moreover, where the accused argues that they were coerced to obey an unlawful order and had no moral choice in committing the act, the plea of superior order “loses any legal relevance”. It thus appears that a plea of superior orders has no true effect on the accused’s case, being raised in conjunction with or discarded completely in favour of other defences. Conclusion: It is important to note that the conditional approach favoured by most states and currently adopted in international law is far from perfect. The fact that the Treaty only explicitly states that genocide and crimes against humanity are manifestly unlawful means that the accused can argue that war crimes fail to meet this standard. This seems absurd considering that Article 8 of the same Treaty sets out a clear and exhaustive list of acts constituting ‘war crimes’. Aside from this, it is clear that other admissible defences such as mistake of law and duress are able to resolve some of the issues inherent in the absolute liability approach without departing from the Nuremberg principle completely. In theory, superior orders ought never to amount to a defence to an international crime because the nature of the crime itself is so barbaric that it is utterly inexcusable. In reality however, acts will be committed during times of war that perverse the rule of law without being unlawful. The act of killing the enemy, for instance, is justified in war despite clearly contravening the common law of every country, the commandments of God, and the most sacrosanct moral principle of every human being that life should never be taken away. Perhaps it comes as no surprise that soldiers from all sides refused to kill enemy combatants on the field during WW1, regarding killing of any kind to be an illegal act. War blurs the rule of law by allowing such justifications to exist, and the expectation placed on subordinates to determine the illegality of an act is simply not realistic. The United States regarded the bombing of Nagasaki as a lawful order because it ended a war which could have continued indefinitely and resulted in the death of millions more. Ehren Watada decided not to follow an unlawful order


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