Living Up to Rules: Holding Soldiers
Responsible for Abusive Conduct and the
Dilemma of the Superior Orders Defence
Martha Minow*
Recent world events underscore the importance of the dilemma of
the superior orders defence and the question of how to prevent soldiers
from undertaking abusive conduct or committing atrocities. This article
examines the degree to which holding individual soldiers legally
responsible for their actions can be seen to be an effective strategy for the
prevention of atrocities and explores complementary strategies aimed at the
prevention of abusive conduct by soldiers.
The article surveys historical and legal materials to illustrate the
ongoing debate over the scope of the superior orders defence in U.S. and
international law. The author then surveys a range of social science
literature that suggests why some people participate in atrocities, and
illuminates how difficult it would be for individuals to understand and
comply with a rule expecting compliance with all superior orders except
those that are illegal. The author concludes that the evidence undermines
the likelihood that a norm establishing individual responsibility would
succeed in changing conduct.
The author argues that it is important to restrict the application of the
superior orders defence in order to uphold a symbolic ideal of individual
responsibility, but that real prospects for preventing atrocities by soldiers
depend on changing the organizational design and resources surrounding the
soldier and specifying new obligations for those in command. The author
recommends changes to military incentives, culture, and practices. Proposed
strategies include the provision of meaningful and effective training programs
for both soldiers and officers, the establishment of a military culture in which
soldiers understand their superiors to care about violations of law and
morality, and the integration of legal analysis into the daily operations of all
levels of the military hierarchy so that the burden of understanding lawfulness
does not rest solely on the shoulders of the ordinary soldier.
Les vnements
internationaux rcents mettent en vidence
limportance le dilemme pos par la dfense des ordres suprieurs, ainsi
que la question de comment prvenir la conduite abusive des militaires et
dissuader ces derniers commettre des actes datrocits. Cet article analyse
quel point le fait dimposer une responsabilit lgale aux militaires peut
savrer une stratgie efficace afin dempcher que des actes datrocits ne
soient commis. Lauteure examine galement la force de stratgies
complmentaires ayant pour but de prvenir la conduite abusive des
militaires.
Lauteure se penche sur des sources historiques et juridiques pour
dmontrer la porte du dbat sur la dfense des ordres suprieurs au niveau
du droit amricain et du droit international. Lauteure passe en revue un
ensemble de recherches acadmiques manant du domaine des sciences
sociales qui illustre comment des individus peuvent tre amens commettre
des actes datrocits. Lauteure explique quel point il serait difficile de
comprendre et de respecter une rgle gnrale qui imposerait une conformit
aux ordres suprieurs pour autant que ceux-ci soient lgaux. Lauteure conclu
quune politique axe sur linstauration dune norme de responsabilit
individuelle aurait peu deffet sur le comportement des militaries.
Lauteure soutient quil est important de restreindre la porte de la
dfense des ordres suprieurs afin de maintenir lidal symbolique que
reprsente la responsabilit individuelle. Nanmoins, certains changements
doivent tre apports la structure organisationnelle qui entoure les militaires
et aux ressources qui leur sont alloues. Les obligations incombant aux
dirigeants militaires doivent galement tre redfinies. Les rformes
proposes par lauteure touchent aux primes de service, la culture et la
pratique militaire. Elles comprennent la mise en place de programmes de
formation pour les militaires et les officiers, la cration dune culture militaire
au sein de laquelle les militaires sont conscients que leurs officiers portent
grande attention aux enfreintes la loi et la moralit, et lintgration dune
culture danalyse juridique pour les oprations quotidiennes tous les
niveaux afin que le fardeau de dterminer ce qui est conforme au droit ne
repose pas uniquement sur les paules du militaire ordinaire.
* Jeremiah Smith, Jr. Professor, Harvard Law School. This was presented as the Raoul Wallenberg
Human Rights Lecture, a lecture organized by the Centre for Human Rights and Legal Pluralism of
McGill University Faculty of Law, 9 March 2006, and as the chair lecture when I was receiving the
Jeremiah Smith, Jr. Professorship, Harvard Law School, 22 February 2006. I am very grateful to Dean
Nicholas Kasirer, Professor Colleen Sheppard, and to the students and community of McGill Faculty
of Law who offered such an engaging discussion about the topics raised in this lecture. An earlier
elaboration of some of these arguments and ideas was presented as the Laurence Kohlberg Lecture to
the Association of Moral Education and Facing History and Ourselves / Harvard Facing History
Conference, 4 November 2005, and published as What the Rule of Law Should Mean for Civics
Education: From the Following Orders Defence to the Classroom (2006) 35 Journal of Moral
Education 137. I am deeply grateful for comments from Arthur Applbaum, Gabby Blum, Larry Blum,
Mary Casey, Rebecca Cohen, Dick Fallon, Lani Guinier, Lt. Col. Patrick Gawkins, Amos Guiora,
Dean Elena Kagan, Pnina Lahav, Daryl Levinson, Dana Savoray, Oded Savoray, Sarah Sewell, Joe
Singer, Mira Singer, Adam Strom, Margot Strom, Cass Sunstein, and Richard Weissbourd, and
participants in presentations at the Boston College Law School, Harvard Law School, and Harvard
J.F.K. School of Government Intervention Seminar. For research help, special thanks go to Yael Aridor
Bar-Ilan, Ryan Budish, Caleb Donaldson, Christine Monta, David Oliwenstein, and Noah Weisbord.
Martha Minow 2007
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Introduction
I. Why Talk About This Now?
II. Superior Orders: From the Nuremberg Trials to Today
III. Moral Development and Psychological Theories: Why
Resistance to Orders is Difficult
A. Insights from Psychological Research
1. Cognitive Dissonance
2. Heuristics and Baseline References
3. Kohlbergs Stages of Moral Development
4. Milgrams Studies of Obedience
5. Studies of Conformity
B. Learning from Psychology: Ordinary Soldiers Are Not
Well Placed to Prevent Atrocity
IV. What Should We Do to Prevent Atrocities?
A. Limited Prevention from Restricting the Superior Orders
Defence
B. Small Gains Through Training Programs
C. Aligning Commands with Law and Morality
1. Try to Eliminate Bad Orders
2. Promote a Constraining and Aspirational Culture
3. Address Command and Organizational Structure
4.
Integrate Legal Analysis into Platoon Command
5. Allocate Resources for Translation and Consultation
Conclusion
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
3
Introduction
In 1945, Raoul Wallenberg sent a message to SS Commander General August
Schmidthuber to the effect that I will see that you will be charged and hanged as a
war criminal if you follow Adolf Eichmanns order and direct the massacre of the
over 60,000 Jews remaining in the Budapest Central Ghetto.1 His message to
General Schmidthuber, remarkably, worked: the Jews in the Budapest Ghetto
survived. We remember and honour Raoul Wallenberg for this and countless other
acts of courage that directly saved thousands of lives during the Holocaust. A man
then in his early thirties, Wallenberg used delay, persuasion, threats, bribes, and his
invented protective passes to save a large remnant of Hungarian Jewry. As Irwin
Cotler observed in his address marking the opening of an exhibit on the life and work
of Wallenberg, his example and his memory teach us that [n]eutrality and
indifference by individuals or neutrality and indifference by state[s] must be
rejected.2
Wallenberg disappeared and died, probably murdered, in Soviet custody. His
personal sacrifice was extraordinary. It is unlikely that many of us would give our
lives to save strangers in a strange land. Perhaps even more pressing, though, is
discovering not what it takes to engage in such extraordinary heroism and sacrifice,
but what it takes to resist committing abusive, illegal acts when ordered to commit
them.
Consider the soldier3 directed to shoot a civilian or the guard pushing people into
the gas chambers; consider General Schmidthuber, ordered by Adolf Eichmann to
massacre the more than 60,000 Jews remaining in the Budapest Central Ghetto.
Schmidthuber could have thought, I will be shot if I do not obey, or if I ever face
trial, I will just say that I was following orders. Instead, he backed down and the
Jews were saved. What would it take for an officer to resist the order of his
commander and halt the planned massacre? Would he simply compare the risks to
himself and evaluate whether he would be more likely to lose his life (or his status) if
he pursued the massacre or cancelled it? Or perhaps moral judgment would enter into
consideration: perhaps the reminder of the wrongness of the planned massacre tipped
the scales? What would an ordinary soldier under the generals command think and
do if ordered to undertake the massacre?
1 See David Metzler, Raoul Wallenberg, online: Jewish Virtual Library
account, see Carl L. Steinhouse, Wallenberg Is Here! The True Story About How Raoul Wallenberg
Faced Down the Nazi War Machine & the Infamous Eichmann & Saved Tens of Thousands of
Budapest Jews (Bloomington, Ind.: 1st Books Library, 2002) at 272.
2 Quoted in Marshall Shapiro, Cotler decries neutrality at Wallenberg memorial exhibit (27
January 2004), online: Bnai Brith Canada
3 Throughout this article, soldier is used to refer to any member of a military organization.
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The Nuremberg trials, held at the International Military Tribunal established by
the Allies after World War II, rejected the I was just following orders defence to
charges of military atrocity and human rights violations.4 A landmark in international
law, the trials established that individuals, not only nations, are responsible for war,
war crimes, genocide, and crimes against humanity. Crucial to this concept was the
explicit rejection of the superior orders defence, as the denial of the defence confirms
that responsibility runs to the individual even where that individual was acting
pursuant to orders.
The Nazi period in Germany exposed better than any other historical experience
how untenable it would be to embrace absolute obedience in all circumstances. The
ostensibly civilian legal system wrested by Adolf Hitler from the Weimar Republic
adopted a conception of the leader-state, making all law the command of the leader
and enabling every single other person in the society to claim they were following
orders.5 Rejecting the defence of superior orders thus became especially urgent if
anyone would be held responsible in a regime that officially made the orders of one
man, Adolf Hitler, the supreme law of the land.6 This would be true in any
hierarchical society.7 Orders that violate the international consensus of acceptable
conduct even in wartime should not shield soldiers from criminal culpability.
4 See note 51 and accompanying text.
5 See Hilaire McCoubrey, The Obligation to Obey in Legal Theory (Aldershot, U.K.: Dartmouth,
1997) at 185-87.
6 In August 1934, the Nazi Reichstag adopted a law combining the positions of president and
chancellor and transferring all authority to Adolf Hitler (Gesetz ber des Staatsoberhaupt des
Deutschen Reichs [Law Concerning the Head of State of the German Reich], 1 August 1934, RGBl. I
1934 at 747 (F.R.G.)). The Germany Army then revised its required oath of allegiance to include
unconditional obedience to the Leader of the German Reich and people, Adolf Hitler, the supreme
commander of the armed forces (Richard J. Evans, The Third Reich in Power, 1933-1939 (New York:
Penguin Press, 2005) at 43, translating Gesetz ber die vereidigung der Beamten und der Soldaten der
Wehmacht [Law on the Allegiance of Civil Servants and Soldiers of the Armed Forces], 20 August
1934, RGBl. I 1934 at 785, 2 (F.R.G.)). As one commentator explains, The unprecedented oath was
to Hitler personally, not the German state or constitution, as were previous Army oaths. Obedience to
Hitler would now be regarded as a sacred duty by all men in uniform, in accordance with their
military code of honour, thus making the German Army the personal instrument of the Fhrer
(Hitler Becomes Fhrer in The Triumph of Hitler, online: The History Place
7 See A.P.V. Rogers, Law on the Battlefield, 2d ed. (Manchester, U.K.: Manchester University Press,
2004) at 190-91, 208-14 [Rogers, Law on the Battlefield]. For a discussion of whether allegiance to
the person or the office of the U.S. presidency should command primary military loyalty, see James H.
Toner, True Faith and Allegiance: The Burden of Military Ethics (Lexington: University Press of
Kentucky, 1995) at 27-29, 31 (discussing views of the General of the U.S. Army, Douglas MacArthur,
in 1951). See also Brian Tierney, Church Law and Constitutional Thought in the Middle Ages
(London: Variorum Reprints, 1979) c. VI (discussing thirteenth-century Bishop Robert Grosseteste
who disobeyed Pope Innocent IV in light of his duty to obey the Apostolic See, distinguishing the
person and the institution).
5
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
This legacy of the Nuremberg Tribunal is widely cited, but the reality of the rule
both at Nuremberg and since is more complicated.8 Those complications reflect Cold
War struggles and national self-interest. Yet even if political considerations could be
put aside, clarifying the rule governing superior orders poses conceptual and practical
difficulties. Conceptually, there is the basic difficulty of modifying the general rule of
military obedience with any exception. How should the rule convey both the duty to
obey orders and the liability for following an illegal order? Specifying the scope of
the exception also raises complex considerations about the scope and meaning of
international treaties, customary law, natural law, national law, and common morality.
Even if a clear and cogent rule emerges, separate problems arise with turning it into
an actual guide for soldier behaviour.
Here the problem is even more profound than the usual translation of technical
legal rules into guides for conduct. Military training and discipline emphasize
compliance with commands and conformity within the unit; penalties attach to
failures to comply even with trivial directives in order to underscore military
discipline. How can this training maintain its effectiveness if it includes not only the
invitation but also the command to question or evaluate orders for their lawfulness?
The conflict between obeying orders and assessing whether an order is one that
deserves obedience is obvious and confusing to commanding officers and soldiers
alike. In case common sense alone is insufficient to establish the point, several
lessons from psychology underscore obstacles to a workable rule teaching both
military obedience and resistance to illegal orders.9
Moreover, the psychological and organizational contexts in which soldiers find
themselves differ considerably from the contexts for the rest of law. The stress of war
and the special problems posed by the war on terror accentuate these obstacles. The
challenge, then, is not merely to devise a workable rule and effective training but also
to address the design of the organization and culture within which responsibility must
be distributedand here, it is not merely the individual soldiers who must be the
focus.
Thus, no honest treatment of the subject can proceed without acknowledging the
central dilemma: telling soldiers that they face punishment unless they disobey illegal
orders means telling them to think for themselves and question authority, yet directing
them to do that risks undermining their training to follow orders, work as a cohesive
whole, and subordinate their own desires and views to the collective enterprise. Taken
to an extreme, directives to think for yourself and question authority would
disturb the command structure and practice of drilled obedience in the military. As
one military expert has explained:
During military operations decisions, actions and instructions often have to be
instantaneous and do not allow time for discussion or attention by committees.
8 See Part II, below.
9 See Part III, below.
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It is vital to the cohesion and control of a military force in dangerous and
intolerable circumstances that commanders should be able to give orders and
require their subordinates to carry them out. 10
Hence, court martial proceedings pursue acts of insubordination.11 Disobedience in
the context of combat can lead to immediate sanctions.12 All of us are often in a
position where we are expected to obey laws, directives from a boss, assignments
from teachers or clients, dress codes, or the traffic directives of police officers. Even
for civilians, individual thought and resistance jeopardize the order sought by official
rules and the rule of law itself. Yet the soldier operating in modern, complex
operations is expected more than most of us to follow training and work as a team
member rather than as a unique individual. What, then, should be the rule about
following orders, the rule that governs the soldiers who must both comport with
military discipline and avoid becoming an instrument for committing atrocities during
war?
Add to this basic dilemma the stress in the exigent circumstances of war and
sheer confusion over what is right and what is wrong in the context of war. Is it
reasonable to expect soldiers to exercise independent judgment to resist faulty orders?
Serious violations of human rights by military actors are more likely to occur today
not due to explicit orders from above but instead through a combination of lax
supervision, tacit encouragement from above, and the stress from both immediate
danger and ongoing pressures to deliver success against difficult odds. These factors
severely complicate judgments about when solders and their superiors should be held
responsible for mistreating prisoners and killing civilians. In addition, reliance on
post hoc punishment based on a formal rule will always be at best a partial solution;
not every instance of misconduct can or will be punished, and the deterrent and
pedagogical signals from punishments are insufficient to prevent future abuses.
Advance planning and training are crucial to preventing atrocities. But what should
be the content of such planning and training?
For soldiers to develop the capacity to perceive and resist illegal directions when
they are fundamentally expected to obey orders and military discipline, the resources
of law, morality, psychology, and education are needed. In this work, I first describe
recent events that underscore the importance of the topic; I then examine legal
materials to demonstrate the continued and understandable debate over the scope of
the superior orders defence today in U.S. and international law. I then examine social
science findings that illuminate how difficult it would be for individuals to
understand and comply with a rule expecting compliance with superior orders except
those that are illegal and findings that indicate why people participate in atrocities.
Ironically, the evidence undermines the likelihood that a norm establishing individual
10 Rogers, Law on the Battlefield, supra note 7 at 208-209 [footnotes omitted].
11 For failing to follow orders, the Uniform Code of Military Justice allows punishment including
the death penalty, depending on the circumstances (10 U.S.C. 47 890, 891, 892 (2000)).
12 See ibid. 815.
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
responsibility would succeed in changing conduct but underscores the potential
importance of maintaining that norm in order to advance the ideal of individual
responsibility. I conclude with an argument that maintaining grounds for individual
responsibility remains important for symbolic reasons but that real prospects for
preventing atrocities by soldiers depend on changing organizational design and
resources surrounding the soldier, including specifying new obligations for those in
command.13
7
I. Why Talk About This Now?
Knowing when to disobey the law is a classic problem in Western philosophy and
the subject of enduring plays and texts, from Platos Socrates to Denzel Washingtons
Crimson Tide.14 Holding soldiers responsible for failing to resist orders is a
particularly vexing question explored in popular films such as A Few Good Men15 and
Breaker Morant.16 Rev. Martin Luther King, Jr. led peaceful civil rights protestors in
strategic acts of disobedience that brought international attention to the corruption
and oppression of the Jim Crow South while triggering new rounds of debate over the
appropriate times and places for disobeying the law.17
The Enron scandal raised the issue in the context of contemporary corporate
practices in the global economy.18 The corporations Chief Financial Officer, Andrew
Fastow, initially claimed he was following the orders of chief executives Jeffrey
Skilling and Kenneth Lay in devising illicit profit-making schemes that ultimately led
him to plead guilty and testify against his former bosses.19 The Enron scandal and
13 This argument has some similarity with the concept of acoustic separation developed by Meir
Dan-Cohen in Decision Rules and Conduct Rules: Acoustic Separation in Criminal Law (1984) 97
Harv. L. Rev. 625 at 627, 630 [Dan-Cohen, Acoustic Separation]. However, rather than
distinguishing the rule of conduct (laws addressed to the general public) from the rule of decision
(laws addressed to judges, officials, etc.), I suggest maintaining the rule of decision, but shifting
resources to effect organizational changes in order to affect conduct.
14 See Plato, The Last Days of Socrates, trans. by Hugh Tredennick (London: Penguin Books,
1954); Crimson Tide, 1995, DVD (Burbank, Cal.: Walt Disney Video, 1998) (Washington plays a
Navy officer who must decide whether to disobey the commanders order to fire nuclear missiles or to
follow his command and risk launching an unprovoked nuclear war).
15 1992, DVD (Culver City, Cal.: Sony Pictures, 1997). See also The Hunchback of Notre Dame,
1996, DVD (Burbank, Cal.: Walt Disney Video, 2002) (a soldier hero disobeys orders).
16 1979, DVD (New York: Fox Lorber, 1997).
17 See David Luban, Legal Modernism (Ann Arbor: University of Michigan Press, 1997) at 209-82;
Taylor Branch, Parting the Waters: America in the King Years 1954-63 (New York: Simon and
Schuster, 1989).
18 See Nancy B. Rapoport, Enron, Titanic and the Perfect Storm (2003) 71 Fordham L. Rev. 1373
at 1393; Jaclyn Taylor, Fluke or Failure? Assessing the Sarbanes-Oxley Act after United States v.
Scrushy, Case Comment, (2005) 74 UMKC L. Rev. 411 at 428.
19 See Demetri Sevastopulo, Enron Task Force Slowly Closes in on Higher Level Targets
Financial Times [U.S. edition] (4 December 2002) 2; William Lyons, Former Enron Finance Chief to
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other colossal instances of corporate misconduct generate questions about whether
Skilling and Lay themselves were following the implied command of shareholders to
succeed at all costs. Thus, commentators have consideredand rejectedthe
possibility that in their corruption, deception, and destruction of a company, its
pension fund, and the jobs of thousands, CEO Jeffrey Skilling or CFO Andrew
Fastow were just following orders.20 The issue persists in ongoing evaluations of
corporate misconduct. Hence, the U.S. Attorney prosecuting an accountant for
making false entries for the WorldCom Corporation explained that just following
orders is no defence to breaking the law.21
Military misconduct since the United States launched the war against terrorism
after 9/11 has made the issue of following orders one of public salience. Thus, just as
the Marine Corps filed charges of murder and conspiracy after the shooting of a
civilian in Iraq, the media reported investigations of a separate case in which Marines
apparently killed at least twenty-four Iraqi civilians in Haditha and then tried to cover
it up.22 Lawyers for a CIA contractor, charged with assaulting a detainee in
Afghanistan who then died, argued that he was following orders.23 Military and media
investigations have begun
to highlight potentially systematic violations of
international and domestic lawand basic decencyin the interrogation and
treatment of people captured in Iraq and Afghanistan and held in Guantnamo Bay,
other facilities maintained by the U.S. government, and facilities maintained by other
Face 78 Charges The Scotsman (2 November 2002) 22; Alexei Barrionuevo, The Courtroom
Showdown, Played as Greek Tragedy The New York Times (12 March 2006) 4-1.
20 See Faint Whistle: Enron and Ethics (21 February 2004), online: Ethics Scoreboard
Lessons Galore The Sacramento Bee (26 May 2006) D1; Michael Lewis, How Do Lay, Skilling and
Fastow see themselves? Taipei Times (10 March 2002), online: Taipei Times
Room: The Amazing Rise and Scandalous Fall of Enron (New York: Portfolio, 2003). In the context of
Enronas in the context of the militarythe central problem probably stemmed less from obedience
to bad orders than from bad conduct throughout the hierarchy flowing from an organizational culture
that lacked moral compass.
21 See Susan Pulliam, A Staffer Ordered to Commit Fraud Balked, Then Caved: Pushed by
WorldCom Bosses, Accountant Betty Vinson Helped Cook the Books The Wall Street Journal (23
June 2003) A1 (quoting James Comey who prosecuted Betty Vinson).
22 Tony Perry, Murder Charges Likely for Marines in Iraq Death Los Angeles Times (2 June 2006)
A1. Military investigation concluded that Marine leadership failed in multiple ways, including in pre-
deployment training. See Thomas E. Ricks, Haditha Probe Finds Leadership Negligent The
Washington Post (9 July 2006) A13.
23 See Estes Thompson, Civilian Abuse Trial Starts Today The Boston Globe (7 August 2006) A4
(describing prosecution of the first civilian brought to trial for misconduct in the Afghanistan and Iraq
wars). The court convicted the ex-CIA contractor, who was charged after beating a detainee for forty-
eight hours during questioning; the detainee died. See Estes Thompson, Ex-CIA Contractor
Convicted The Boston Globe (18 August 2006) A7 (CIA Director Michael V. Hayden described the
defendants actions as totally inconsistent with the normal conduct of CIA officers and contractors).
9
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
nations.24 These incidents have prompted some to revisit the atrocity of the My Lai
Massacre which itself holds an ambiguous place in American memory.25
Sorting out lawful military orders from unlawful ones is difficult under the best of
circumstances. The multiple relevant sources of law include the rules of the particular
military service, the national constitutional law, and international humanitarian law.
Interpreting these complex materials and applying them to shifting contexts, new
military technologies, and disputed facts are subtle and difficult tasks. Widely quoted
by military lawyers is the comment of a U.S. Army officer after a training exercise
exposing some of these complexities. He said, I know that if I ever go to war again,
the first person Im taking is my lawyer.26
Yet contemporary charges of abuses by the U.S. military are especially
complicated by the administrations departure from traditional military rules. Indeed,
U.S. troops can fairly object that in many of their operations they do not even know
what legal framework applies. Lawyers for President George W. Bush concluded that
the Geneva Conventions do not protect as prisoners of war members of the al Qaeda
network,
these
memberships,27 and so argued to the U.S. Supreme Court.28 After authorities at
Guantnamo requested approval of stronger interrogation techniques, Secretary of
Defense Donald Rumsfeld announced that prisoners at Guantnamo Bay would not
be viewed as prisoners of war29 and authorizedbut later withdrewa list of
the Taliban militia, or persons
in detention suspected of
24 See Rebecca Carr, Torture Hearing to Begin in Geneva The Atlanta Journal-Constitution (5
May 2006) A9; Eric Schmitt & Carolyn Marshall, In Secret Units Black Room, A Grim Portrait of
U.S. Abuse The New York Times (19 March 2006) 1-1; Abu Ghraibs Ghosts: U.S. Decision to
Withdraw from Infamous Prison Does Not Solve Human Rights Violations in Iraq Houston
Chronicle (14 March 2006) B8.
25 Kendrick Oliver, The My Lai Massacre in American History and Memory (Manchester, U.K.:
Manchester University Press, 2006).
26 Colonel Patrick Finnegan, Operational Law: Plan and Execute (1996) 76:2 Military Review 29
at 32.
27 See Memorandum re: Application of Treaties and Laws to al Qaeda and Taliban Detainees from
John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice to
William J. Haynes II, General Counsel, U.S. Department of Defense (9 January 2002), online: The
National Security Archive, The George Washington University
eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005) at
38-79 [Yoo Memorandum]; Jane Mayer, The Hidden Power: The Legal Mind Behind the White
Houses War on Terror The New Yorker (3 July 2006) 44.
28 See Rasul v. Bush, 542 U.S. 466 (2004) [Rasul]; Hamdi v. Rumsfeld, 542 U.S. 507 at 549-50
(2004), Souter J., concurring [Hamdi]. On the moral questions raised for the lawyers giving such
advice, see W. Bradley Wendel, Legal Ethics and the Separation of Law and Morals (2005) 91
Cornell L. Rev. 67; Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House
(2005) 105 Colum. L. Rev. 1681.
29 See Rumsfeld Visits Camp X-Ray (CNN television broadcast, 27 January 2002), online: CNN.com
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approved measures, including interrogation techniques challenged by human rights
advocates as violations of U.S. and international law.30 In the meantime, these
expansive interpretations informed forces on the front lines through Department of
Defense directives about treatment of detainees.31
As a result, actions taken by members of the U.S. military violated U.S. and
international law.32 These include (1) detaining individuals without giving them the
Investigations: The Official Reports of the Independent Panel and the Pentagon on the Shocking
Prisoner Abuse in Iraq (New York: Public Affairs, 2004).
30 See Mike Allen & Susan Schmidt, Memo on Interrogation Tactics Is Disavowed: Justice
Document Had Said Torture May Be Defensible The Washington Post (23 June 2004) A1; Eric
Lichtblau, Gonzales Says Humane-Policy Order Doesnt Bind C.I.A. The New York Times (19
January 2005) A17. These developments were especially worrisome in light of research indicating the
heightened tendency of guards to treat prisoners as less than human. See Craig Haney, Curtis Bank &
Philip Zimbardo, Interpersonal Dynamics in a Simulated Prison (1973) 1 International Journal of
Criminology and Penology 69 at 69, 80. See also Erik Saar & Viveca Novak, Inside the Wire: A
Military Intelligence Soldiers Eyewitness Account of Life at Guantnamo (New York: Penguin Press,
2005) at 72-73, 75, 97-99 (describing how guards in Guantnamo prison wanted detainees suspected
as terrorists linked with 9/11, subdued them with brute strength, and wished misery upon them).
Approved techniques included dietary manipulation, sleep deprivation, and isolation. See Saar &
Novak, ibid. at 281-92 (reprinting U.S. Department of Defense Category I, II, and III interrogation
techniques approved by the secretary of defense on 2 December 2002); Memorandum re: Counter-
Resistance Techniques from William J. Haynes II, General Counsel, U.S. Department of Defense to
Secretary of Defense (27 November 2002); Memorandum re: Request for Approval of Counter-
Resistance Strategies from Lt. Col. Jerald Phifer, Director, J2, Joint Task Force 170 to Commander,
Joint Task Force 170 (11 October 2002) [Haynes Memorandum]. Both documents can be found
online: The National Security Archive, The George Washington University
[Vol. 52
31 See Deborah N. Pearlstein, Finding Effective Constraints on Executive Power: Interrogation,
Detention, and Torture (2006) 81 Ind. L.J. 1255 at 1263-1266 (citing internal military documents
regarding treatment of detainees since 2002).
32 Extreme examples are the instances of detainee abuse in Abu Ghraib and Guantnamo,
documented by several investigations. See U.S., Army Public Affairs, AR 15-6 Investigation of the
Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (Washington, D.C.: U.S. Army
Public Affairs, 2004) (Investigating Officer: Maj. Gen. George R. Fay), online: U.S. Government
Printing Office
[Fay Report]; U.S.,
Department of Defense, Review of Department of Defense Interrogation Operations (2005)
(Investigating Officer: Vice Adm. Albert T. Church III), online: Department of Defense
of Defense, Army Regulation 15-6: Final Report, Investigation into FBI Allegations of Detainee
Abuse at Guantanamo Bay, Cuba Detention Facility (2005) (Investigating Officer: Brig. Gen. John T.
Furlow), online: Department of Defense
soughtand failedto create a space outside of the application of any laws, but because overlapping
and conflicting sources of law actually applied to the civilian, military, and CIA actors involved with
detaining prisoners at Abu Ghraib. See Diane Marie Amann, Abu Ghraib (2005) 153 U. Pa. L. Rev.
2085 at 2087, 2140. For an analysis of the international and domestic norms that apply to interrogation
of detainees under U.S. control, see Committee on International Human Rights and Committee on
Military Affairs and Justice, Human Rights Standards Applicable to the United States Interrogation
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
opportunities to challenge their confinement as required for prisoners of war,33 (2)
deploying interrogation techniques that violate international standards enacted into
U.S. law,34 and (3) transferring detainees to secret prisons where ill treatment or
11
of Detainees (2004) 59 The Record of the Association of the Bar of the City of New York 183. To
remedy ambiguities, the report recommended amending U.S. law to clarify the application of
domestic and international standards to intelligence personnel, to ensure that the Uniform Code of
Military Justice, supra note 11 applies to detainees under U.S. control, and to investigate human rights
compliance in countries where the U.S. render[s] detainees (Saar & Novak, supra note 30 at 250).
Even without any such changes, the general counsel to the U.S. Department of Defense maintained
that the United States complies with its legal obligations in the treatment of detainees, including the
ban against torture and the prohibition of acts of cruel, inhuman, or degrading treatment (but only
insofar as U.S. constitutional law would treat the particular acts as unconstitutional). See Letter of
William H. Haynes III to Sen. Patrick J. Leahy (25 June 2004), reprinted in Saar & Novak, ibid. at
269-70. After Congress adopted a law to clarify U.S. commitments to disavow the use of torture on
detainees, President George W. Bush issued a signing statement reserving authority to the Executive
law. See Department of Defense, Emergency Supplemental
Branch for
Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, Pub.
L. No. 109-148, 1003, 119 Stat. 2680 at 2739 (2005), repassed to correct punctuation, National
Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 1403, 119 Stat. 3136 at 3475;
Statement on Signing the National Defense Authorization Act for Fiscal Year 2006, 42 Weekly Comp.
Pres. Doc. 23 (6 January 2006), online: U.S. Government Printing Office
incorporating by reference the Statement on Signing the Department of Defense, Emergency
Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza
Act, 2006, 42 Weekly Comp. Pres. Doc. 1918, 1919 (30 December 2005), online: U.S. Government
Printing Office
interpreting U.S.
33 See Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
34 For many months following 9/11, U.S. policy disputed the applicability of international standards
to enemy combatants and detained terror suspects on the theory that these people were neither
civilians of, nor prisoners of war from, a nation party to the Geneva Conventions. This view
contradicted the interpretation prevalent among signatory states that the Geneva Conventions were
intended to cover all individuals. Thus, international legal standards, which the United States has
accepted, are clear about the requisite treatment of civilians during war. See e.g. Geneva Convention
Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287, art. 3,
6 U.S.T. 3516 (entered into force 21 October 1950) [Fourth Geneva Convention]. It states:
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be bound
to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
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torture may be underway.35 A senior Pentagon lawyer, Albert Mora, repeatedly
advised the Bush administration that its policy on the coercive interrogation of terror
suspects violated the law, came close to torture, and could give rise to criminal
prosecutions of those giving the orders.36 Under these circumstances, what rules do
apply? At best, such uncertainty exposes the soldiers to the risk of punishment after
they engage in conduct that turns out to violate the laws that a tribunal applies after
the fact. At worst, uncertainty about the legal status of enemy combatants, putative
terrorists, or civilians who might be associating with terrorists actually invites soldiers
to commit abuses and atrocities in a climate of fear and disorder.37
Complexity about what tactics and techniques are lawful is further compounded
by ambiguities about who is responsible for conduct that proves, post hoc, to be
illegal. Should a soldier be liable for following an order that later turns out to be
illegal but was not obviously illegal in his or her eyes? One military law expert argues
that the law must protect the soldier who is risking his or her life: In return for [his]
unswerving obedience the solider needs the protection of the law so that he does not
(c) outrages upon personal dignity, in particular humiliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording all
the judicial guarantees which are recognized as indispensable by civilized
peoples.
35 See Human Rights Watch, Questions and Answers: U.S. Detainees Disappeared into Secret
Prisons: Illegal under Domestic and International Law (9 December 2005), online: Human Rights
Watch
Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47,
6 I.L.M. 368 (entered into force 23 March 1976) [ICCPR] and Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, Can.
T.S. 1987 No. 36 (entered into force 26 June 1987) [Convention Against Torture]).
36 See Tim Golden, Senior Lawyer at Pentagon Broke Ranks on Detainees The New York Times
(20 February 2006) A8. Mora retired in January 2006 after four years as general counsel of the Navy;
his objection contributed to the decision to suspend the use of coercive techniques in Guantnamo
approved in December 2002, but did not halt Secretary of Defense Rumsfelds approval of new
techniques in April 2003. See ibid. The White House subsequently proposed retroactive protection for
political appointees and CIA personnel involved in interrogations using techniques such as water-
boarding and other acts prohibited under Article 3 of the Fourth Geneva Convention (which bans
outrages upon personal dignity, in particular humiliating and degrading treatment (supra note 34,
art. 3(1)(c))). See Pete Yost, White House Proposes Retroactive War Crimes Protection The Boston
Globe (10 August 2006) A8.
37 One Pentagon investigation concluded that leader responsibility and command responsibility,
systemic problems and issues also contributed to the volatile environment in which the abuse
occurred in Abu Ghraib (Fay Report, supra note 32 at 8). See also Church Report, supra note 32 at
16. One U.S. interrogator described both intensive training in complying with the restrictions of
international law and, while serving in Afghanistan after 9/11, pressure to press the limits of those
restrictions by using sleep deprivation and scare tactics. See Chris Mackey & Greg Miller, The
Interrogators: Inside the Secret War Against Al Qaeda (New York: Little, Brown, 2004) at 30-31, 282-
89.
13
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
afterwards risk his neck for having obeyed an order that later turns out to be
unlawful.38 This view is problematic if it revives the just following orders defence,
but it exposes the problems with eliminating mitigation entirely for the soldier who
follows an order that was not obviously illegal or about which lawyers and other
experts disagree. Members of the military no less than any other members of the
community deserve clarity about the law that governs their conduct. The current free
fall from legality concerning the conduct of detentions and interrogations denies
members of the military the clarity that would make it fair to hold individuals liable
for breaching the rules.
The notorious prisoner abuses in the Abu Ghraib prison by U.S. military, CIA,
and employees under contract with the U.S. government reflect ambiguity and
disagreement over the rules governing permissible detentions and interrogations,39
although the wrongness of most of the abusive conduct is undisputed.40 Also at work
were inadequate training,41 confused lines of command, competition between the
military and intelligence teams, the boredom and anxiety experienced by young and
inadequately trained members of the military reserve, and at least in the case of one
person, the psycho-sexual politics of trying to impress or please a boyfriend.42
38 Rogers, Law on the Battlefield, supra note 7 at 209.
39 See U.S., Independent Panel to Review Department of Defense Detention Operations, Final
Report of the Independent Panel to Review Department of Defense Detention Operations (2004),
reprinted in Strasser, supra note 29 at 14-19 (describing the migration of interrogation techniques from
Guantnamo to military intelligence and military police soldiers in Afghanistan and Iraq without
specific guidelines, safeguards, or limits; leadership failures; inadequate resources; and tangled
command relationships). Military justice rules do not reach civilian contractors. As the United States
increasingly relies on civilian contractorsestimated at 20,000-30,000 contract employees in the
current Iraq conflictthis exposes a gap in legal accountability for misconduct and abuse. See Martha
Minow, Outsourcing Power: How Privatizing Military Effort Challenges Accountability,
Professionalism, and Democracy (2005) 46 B.C.L. Rev. 989 at 989, 994-96, 1016-20.
40 One of the guards at Abu Ghraib told investigators, I witnessed prisoners in the MI hold section,
wing 1A being made to do various things that I would question morally (quoted in U.S., Department
of Defense, AR 15-6 Investigation of the 800th Military Police Brigade (2004) (Investigating Officer:
Maj. Gen. Antonio M. Taguba) at 18, online: Department of Defense
guard explained that he neither reported nor protested the abuses [b]ecause [he] assumed that if they
were doing things out of the ordinary or outside the guidelines, someone would have said something
(ibid. at 19).
41 Soldiers initially deployed in Abu Ghraib were trained for military rather than prison operations.
See Interview of Lt. Col. Patrick Gawkins by Martha Minow (22 March 2006) on file with author;
Taguba Report, supra note 40 at 37. The military police in charge of operations at the time of severe
abuses at Abu Ghraib had no training in handling detainees. See Interview of 1st Sgt., 372nd Military
Police Company by Taguba panel (10 February 2004) summarized in Taguba Report, ibid., Annex 81,
online: Department of Defense
42 Lynndie England was a private in the U.S. Army Reserve who became the public face of prisoner
abuse in the Abu Ghraib prison. She flagrantly posed with naked Iraqi prisoners, holding one by a
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Only eight people have faced court martial and conviction related to the abuse
scandal; the most senior official involvedthe commander of the prisonreceived
only a demotion in rank.43 Pursuing those higher up in the chain of commandand
those responsible for the absence of clear legal rules altogetheris crucial if we
really care about accountability, the rule of law, and deterring gross misconduct in the
war against terror. Yet following the exposure of abuses in Abu Ghraib, none of the
investigations aimed higher than General Sanchez, toward the Pentagon; none of the
inquiries examined the role of the CIA or civilian authorities; and apparently no
investigations have been launched to assess directives given to U.S. forces in
Guantnamo Bay.44 Command responsibilitythe liability of those in command for
leash while dangling a cigarette from her smiling mouth, and pointing at the genitals of naked, hooded
detainees. See e.g. Anna Cock, Abuse Guard was Just Having Fun The [Sydney] Daily Telegraph
(5 August 2004) 31. Englands effort to plea bargain failed when Specialist Charles Graner testified at
the plea bargain hearing that England had been following his orders; the judge threw out the guilty
plea on the grounds that England was apparently contesting her guilt. At trial, the witnesses disagreed
about whether Graner had directed her to pose with the detainees. Englands lawyer converted the
just following orders claim into a psychological defence, and argued for acquittal on the grounds
that England had an overly compliant personality and had fallen under Graners influence. The
prosecutor countered that Private England had been an enthusiastic participant (David S. Cloud,
Starkly Contrasting Portraits of G.I. in Iraqi Abuse Retrial The New York Times (22 September 2005)
A14). Beyond these instances of humiliation at the hands of guards, personnel engaged in
interrogation pursued such questionable techniques as scattering liquid designed to look like menstrual
blood on inmates, forcing them to listen to extremely loud and disturbing music for long periods of
time, keeping them in squatting positions for long periods of time, and keeping them in darkness or
under hoods. See Saar & Novak, supra note 30 at 223-27. The legality of these kinds of techniques
under U.S. law and under international law is an ongoing issue of debate. See notes 27-28 and
accompanying text. On prisoner abuse in Iraq, see generally Rick Hampson, Abuse Less Shocking in
Light of History USA Today (13 May 2004), online: USA Today
History and Abuses at Abu Ghraib Prison (2004) 2 Journal of International Criminal Justice 988.
43 See Suzanne Goldenberg, End of Infamous Prison: Abu Ghraib, Symbol of Americas Shame, to
Close Within Three Months The [London] Guardian (10 March 2006) 3 (Brigadier Janis Karpinski
was demoted to colonel in 2005); Bob Dart, Abu Ghraib Aftermath: Where Does the Buck Stop?
The Atlanta Journal-Constitution (3 May 2005) A1 (discussing issues of chain of command).
44 See Human Rights Watch, Getting Away with Torture? Command Responsibility for the U.S.
Abuse of Detainees (April 2005) at 19, online: Human Rights Watch
Fourth Geneva Conventions of 1949, addressing treatment of prisoners of war and civilians, did not
apply to the detainees under U.S. control in Guantnamo Bay despite contrary prior interpretations
used by the military. See Saar & Novak, supra note 30 at 161-65; Lt. Col. Paul E. Kantwill & Maj.
Sean Watts, Hostile Protected Persons or Extra-Conventional Persons: How Unlawful Combatants
in the War on Terrorism Posed Extraordinary Challenges for Military Attorneys and Commanders
(2005) 28 Fordham Intl L.J. 681 at 688-705, 716, 722-29. The president issued a memorandum
determin[ing] that common Article 3 of [the] Geneva [Conventions] does not apply to either al Qaeda
or Taliban detainees, because … the … conflicts are international in scope and common Article 3
applies only to armed conflict not of an international character. Moreover, the memo stated that
the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war
under Article 4, and that Article 4 does not apply to al Qaeda detainees or the conflict with al Qaeda
15
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
violations committed by their soldiersis as important as holding individual soldiers
responsible for following illegal orders.45
There are often powerful incentives against moving up the chain of command in
holding people accountable for military abuses. Loyalty, hopes for promotion, fears of
retaliation, and solidarity with those in authority explain some of the reasons why
prosecutions of higher authorities so seldom follow military atrocities, even though
the doctrine of command responsibility obviates the difficulties in establishing orders
or actual knowledge in advance of the violations. Yet, precisely because there is a
chain of command, responsibility for failing to prevent or halt abusive practices can
and must be asserted. Moreover, the prospects for establishing norms and preventing
atrocities depend on leaders who influence military culture and practice as a whole.46
International criminal tribunals may be more willing than domestic courts or internal
military tribunals to enforce command responsibility. Notably, the International
Criminal Tribunal for the Former Yugoslavia found a prison camp commander guilty
under the doctrine of command responsibility for acts of murder, torture, and
infliction of great suffering as committed by his subordinates at the camp he
commanded for six months because he was fully aware of the fact that the guards at
(Memorandum re: Humane Treatment of al Qaeda and Taliban Detainees from George Bush,
President to The Vice President, The Secretary of State, The Secretary of Defense, The Attorney
General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for
National Security Affairs, Chairman of the Joint Chiefs of Staff (7 February 2002) at 2, online: The
National Security Archive, The George Washington University
Classified communications from FBI agents report abuses of prisoners at Guantnamo. Agents
described finding prisoners chained hand and foot in a fetal position for up to 24 hours at a time, …
prisoners who had urinated or defecated on themselves, … a detainee [who] had been gagged with
duct tape that covered much of his head, and others subject to sexual and religious taunting by
interrogators (60 Minutes: Torture, Cover-Up at Gitmo? (CBS News television broadcast 1 May
2005), online: CBS News
45 Command responsibility is the doctrine under which the commander is responsible for the
misconduct of those under command if they acted in pursuance of an order of the commander
concerned. The commander is also responsible if he has actual knowledge, or should have knowledge,
through reports received by him or through other means, that troops or other persons subject to his
control are about to commit or have committed a war crime and he fails to take the necessary and
reasonable steps to insure compliance with the law of war or to punish violators thereof (U.S.,
Department of the Army, The Law of Land Warfare (FM 27-10) at para. 501 (July 1956), cited in Col.
William G. Eckhardt, Command Criminal Responsibility: A Plea for a Workable Standard (1982) 97
Mil. L. Rev. 1 at 31.
See also A.P.V. Rogers, Command Responsibility Under the Law of War, online: Lauterpacht
Centre for International Law, University of Cambridge
committed by a subordinate will not absolve a superior from responsibility if he knew or ought to
have known that it was being committed and did nothing to prevent it or bring the offender to justice
at 17, paraphrasing Protocol additional to the Geneva Conventions of 12 August 1949, and relating to
the protection of victims of international armed conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3,
art. 86, Can. T.S. 1991 No. 2 (entered into force 7 December 1978)).
46 See Parts IV.C.2 and IV.C.3, below (discussing military culture and organization).
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the Celebici prison-camp were engaged in violations of international humanitarian
law.47
But whether or not prosecutions of higher authorities proceed, it is also right to
punish individual soldiers, like Army Reserve Private Lynndie England, who actually
commit abuses. Even if they thought they were following orders,48 they knew, or
should have known, that they were engaged in conduct departing from acceptable
standards.49 They should be held responsible because excusing them sends a wrong
47 Prosecutor v. Zejnil Delalic, IT-96-21-T, Judgment (16 November 1998) at paras. 722, 770
(International Criminal Tribunal for the Former Yugoslavia, Trial Chamber). The Rome Statute of the
International Criminal Court details the terms of command responsibility in the following way:
28. In addition to other grounds of criminal responsibility under this Statute for
crimes within the jurisdiction of the Court:
(1) A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes within the jurisdiction of the
Court committed by forces under his or her effective command and control, or
effective authority and control as the case may be, as a result of his or her failure to
exercise control properly over such forces, where:
(a) That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were committing
or about to commit such crimes; and
(b) That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
(2) With respect to superior and subordinate relationships not described in
paragraph 1, a superior shall be criminally responsible for crimes within the
jurisdiction of the Court committed by subordinates under his or her effective
authority and control, as a result of his or her failure to exercise control properly
over such subordinates, where:
(b) The crimes concerned activities that were within the effective
(a) The superior either knew, or consciously disregarded information
which clearly indicated, that the subordinates were committing or about to
commit such crimes;
responsibility and control of the superior; and
(c) The superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and prosecution (17 July
1998, 2187 U.N.T.S. 90, 37 I.L.M. 1002 (entered into force 1 July 2002)
[Rome Statute]).
48 England told CBS reporter Brian Maass, To all of us who have been charged, we all agree that
we dont feel like we were doing things that we werent supposed to, because we were told to do
them. We think everything was justified, because we were instructed to do this and to do that (quoted
in Private in Prison Abuse Photos Shares Her Story (CBS4 Denver television broadcast 11 May
2004), online: CBS4 Denver
49 England noted that she thought the conduct that they were pursuing was kind of weird (ibid.).
The whistle blower who shared the photos of the abusive conduct ultimately received praise as the
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
and dangerous message to other soldiers, the nation, and the world. This is the
implicit message behind the refusal of the Nuremberg Tribunal to accept the superior
orders defence, but subsequent legal developments have complicated the point.
17
II. Superior Orders: From the Nuremberg Trials to Today
Under an old conception, advanced by Cicero and Thomas Hobbes, the law
should impute soldiers actions to the superior, not the subordinate who obeys
authority.50 In this view, individual solders should not be held responsible for
following the directives of their authorized commanders. It is precisely this traditional
view that the Nuremberg International Military Tribunal resisted. Very often cited to
demonstrate this rejection is the decision of a court run by the United States in one of
the proceedings following the judgments by the Nuremberg Tribunal. In the
Einsatzgruppen Case,51 the United States pursued elite military squads who followed
the regular German army into the Soviet Union and Poland, rounded up civilians, and
killed them. Applying the Nuremberg Tribunals rules, the court found all twenty-four
of the defendants guilty of war crimes and wrote an opinion with this vivid
explanation:
The obedience of a solider is not the obedience of an automaton. A solider
is a reasoning agent. … The fact that a solider may not, without incurring
world community condemned the behaviour of England and others. See Praise for Iraq Whistleblower
(CBS News television broadcast, 10 May 2004), online: CBS News
Conscience of Joe Darby, online: Peace Redding
50 See e.g. Nico Keijzer, Military Obedience (Alpena an den Rijn, Neth.: Sijthoff & Noordhoff,
1978) at 145 (discussing Cicero), 146-47 (discussing Thomas Hobbes). See Thomas Hobbes, De Cive:
Latin Version (Oxford: Clarendon Press, 1983) c. 12 at ss. 1-2. British courts rejected this view in the
seventeenth century. See McCoubrey, supra note 5 at 163-71.
51 United States v. Otto Ohlendorf (Einsatzgruppen Case) (1950), 4 Trials of War Criminals 1
[Einsatzgruppen Case]. It became known as the Einsatzgruppen Case because all of the defendants
were charged with criminal conduct arising from their functions as members of the Einsatzgruppen,
special task forces formed in May 1941 at the direction of Hitler and Heinrich Himmler just before the
German attack on Russia. These units consisted of some four thousand men who followed regular
Germany army troops into conquered territory, usually in the Soviet Union. There they would round
up Jews, gypsies, and others, including Soviet Communist party officials. The prisoners would then be
executed and their bodies dumped into pits. The defendants were not the decision makers but
members of the units who engaged in these mass roundups and killings. When the trial of the
Einsatzgruppen opened in 1947, Benjamin Ferencz told the court, [T]he slaughter committed by
these defendants was dictated, not by military necessity, but by that supreme perversion of thought,
the Nazi theory of the master race (ibid. at 30). See Dr. Stuart D. Stein, The Einsatzgruppen Case,
online: Web Genocide Documentation Centre, University of the West of England
Deborah George, Elite Military Killing Squads in Justice on Trial, Part 1: The Legacy of
Nuremberg
(2002), online: American RadioWorks
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[Vol. 52
unfavorable consequences, refuse to drill, salute, exercise, reconnoiter, and
even go into battle, does not mean that he must fulfill every demand put to him.
…
The subordinate is bound only to obey the lawful orders of his superior and
if he accepts a criminal order and executes it with a malice of his own, he may
not plead superior orders in mitigation of his offense.52
Here the court noted that it had the benefit of precedent in Imperial Germany to the
same effect.53 Nazi Propaganda Minister Joseph Goebbels had publicly embraced
what he deemed to be international law on the subject when he ridiculed the plea of
superior orders proffered by captured Allied pilots in 1944,54 and the Nazi leaders
during this period stated that they rejected the following orders defence.55
Particular nations have over time recognized, rejected, and then recognized anew
the superior orders defence. The United States and Great Britain, for example, have
shifted positions, at times rejecting the defence, at times permitting it.56 The two
countries shifted once more in devising plans for what became the International
Military Tribunal hearings in Nuremberg, Germany. While World War II still raged,
Allied leaders began to talk about an international tribunal to be held after the war
and even in early discussions urged that following orders should not be permitted
as a defence.57 Early attention to the topic showed that the tribunal idea was serious
enough to require working out such details, but it also underscored the degree to
which discussion of a postwar tribunal reflected hopes of deterring further atrocities
during the war while raising the morale of the troops.58 In 1943, leaders of seventeen
52 Einsatzgruppen Case, ibid. at 411, 470-71.
53 See Gary D. Solis, Obedience of Orders and the Law of War: Judicial Applications in American
Forums (1999) 15 Am. U. Intl L. Rev. 481 at 495.
54 United Nations War Crimes Commission, History of the United Nations War Crimes Commission
and the Development of the Laws of War (London: His Majestys Stationery Office, 1948) at 288,
cited in Solis, ibid. at 511. See also Morris Greenspan, The Modern Law of Land Warfare (Berkeley:
University of California Press, 1959) at 442.
55 See Solis, ibid. at 511.
56 Ibid.
57 See Howard S. Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of
Superior Orders (1991) 30 The Military Law and Law of War Review 183 at 189-90. The first
instance of a judicial response to atrocity focused on Sir Peter von Hagenbach, who was charged with
murder and other violations in a court created by the Archduke of Austria in 1474 specifically to
create a legal forum rather than summary execution. Von Hagenbach defended himself on the grounds
that he was just following orders to maintain security as governor of a town in the Upper Rhine; thus,
his case launched both the legal response to atrocity and the debate over the defence of following
orders. See Don Murray, Judge and Master CBC News (18 July 2002), online: cbc.ca
58 See Hillel Levine, Between Social Legitimation and Moral Legitimacy in Military
Commitment in Thomas C. Wyatt & Reuven Gal, eds., Legitimacy and Commitment in the Military
(New York: Greenwood Press, 1990) 9 at 9, 11.
19
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
nations met as part of the United Nations Commission for the Investigation of War
Crimes and began to debate the rules and structures for such trials.
A proposal drafted by the U.S. participants in 1945 specified that defendants
would not be allowed an absolute defence based on act[ing] pursuant to order of a
superior or government sanction but would be permitted mitigation of punishment
on the basis of superior orders or government sanction.59 The actual Charter of the
International Military Tribunal ultimately drawn up to govern the Nuremberg trials
went even further, restricting the use of superior orders to mitigating punishment
only in instances where justice so requires.60 Yet despite the popular understanding
that the Nuremberg Tribunal flatly rejected the defence, following superior orders did
not disappear from consideration. Instead, it moved from the assessment of guilt to
the assessment of punishment.61
In trials before the tribunal, defence counsel repeatedly asserted that their clients
were following orders, and they did not confine such assertions to the mitigation of
punishment. Thus, lawyers for Field Marshal Wilhelm Keitel and Colonel General
Alfred Jodl argued that the defendants were following orders and thus not only
should have mitigated punishment but also should have no criminal liability.62 The
tribunal explicitly rejected all of these claims and announced that the law of all
nations rejected a defence based on superior orders to kill or torture in violation of
international law.63 Some judges at Nuremberg wanted to go further. They urged
holding defendants responsible unless they lacked a moral choicea personal
capacity to act differently without risking ones own life or the safety of ones
family.64 This concept in contemporary terms has more in common with the defence
59 American Draft of Definitive Proposal, Presented to Foreign Ministers at San Francisco, April
1945, art. 11 in U.S., Department of State, Report of Robert H. Jackson: United Nations
Representative to the International Conference on Military Trials, London, 1945 (Washington, D.C.:
United States Government Printing Office, 1949) at 24, cited in Levie, supra note 57 at 190.
60 8 August 1945, 82 U.N.T.S. 280, art. 8, 59 U.S. Stat. 1544 [Charter of the IMT].
61 Ibid. (The fact that the Defendant acted pursuant to order of his Government or of a superior
shall not free him from responsibility, but may be considered in mitigation of punishment if the
Tribunal determines that justice so requires).
62 See United States v. Karl Brandt (Medical Case) (1947), 1 Trials of War Criminals at 290-91, 325.
63 U.K., H.C., Judgment of the International Military Tribunal for the Trial of German Major War
Criminals (With the Dissenting Opinion of the Soviet Member), Cmd 6964 in Sessional Papers, vol.
25 (1946-47) 511 at 556.
64 See Charles Garraway, Superior Orders and the International Criminal Court: Justice Delivered
or Justice Denied (1999) 81 Intl Rev. Red Cross 785. Article 6 of the Charter of the International
Military Tribunal for the Far East, 19 January 1946, T.I.A.S. No. 1589, 4 Bevans 20 [Tokyo Charter]
echoes article 8 of Charter of the IMT, supra note 60, and the Tokyo Tribunal heard and rejected
defences based on superior orders. See Re Masuda (1945), 13 A.D.I.L. 286 at 287 (U.S. Military
Commission). Because higher authorities were available for those prosecutions, including that of
General Tomoyuki Yamashita, the Tokyo Tribunal had to focus as well on the scope of command
responsibility, that is, the question of when a commander should be held responsible for conduct
committed by his troops whether implicitly authorized or not. See Solis, supra note 53 at 514.
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of duress, and indeed, duress has sometimes been confused with the defence of
superior orders.65
Yet, after the Nuremberg trials, diplomatic efforts to establish a permanent
international criminal court and to codify the rejection of the superior orders defence
foundered as Western powers and the Soviet Union approached each negotiation in
light of Cold War tensions.66 Despite long meetings with expert committees, the
United Nations could not secure agreement on proposed codifications of the laws of
war, peace, and security; efforts to formulate principles from Nuremberg failed.67 Nor
could the International Red Cross summon sufficient support to include the superior
orders provision in the 1949 Geneva Conventions or the 1977 follow-up protocol.68
National representatives disagreed over whether soldiers should ever be expected to
think for themselves and decide whether or not to obey orders.69
Some experts conclude that this failure by any international group to adopt a
formal statement rejecting the defence of superior orders means that the defence is
now available.70 One scholar argues that because international law has not clearly
rejected the superior orders defence, defence counsel in war crimes trials who do not
assert a defence of superior orders would be professionally derelict.71 Others
emphasize that even the Nuremberg formulation preserved the defence in connection
with coercion or lack of moral choice, or in limited circumstances.72
65 See Suzannah Linton & Caitlin Reiger, The Evolving Jurisprudence and Practice of East Timors
Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior Orders (2001) 4 Y.B.
Intl Human. L. 167 at 169-78.
66 See Matthew Lippman, The Convention on the Prevention and Punishment of the Crime of
Genocide: Fifty Years Later (1998) 15 Ariz. J. Intl & Comp. L. 415 at 459.
67 See Levie, supra note 57 at 199.
68 See ibid. at 199-203; Garraway, supra note 64 at 785-94.
69 See International Committee of the Red Cross, Report on the Work of the Conference of
Government Experts on the Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts, Second Session, Geneva, July 1972, vol. 1 (Geneva: International
Committee of the Red Cross, 1972) at 188.
70 In his August 2002 memorandum explaining why the Convention Against Torture, supra note 35
would not prevent the use of coercive practices in interrogation, thenAssistant Attorney General Jay
Bybee indicated that superior orders could be a defence in an international prosecution for violations
of the Convention Against Torture. See Memorandum re: Standards of Conduct for Interrogation
under 18 U.S.C. 2340, 2340A, from Jay S. Bybee, Assistant Attorney General, Office of Legal
Counsel, U.S. Department of Justice to Alberto R. Gonzales, Counsel to the President (1 August 2002)
at 45, online: FindLaw
71 Levie, supra note 57 at 204.
72 See Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808
(1993), UN SCOR, 48th Sess., Supp. April, May and June 1993, UN Doc. S/25704, 117 at para. 57;
Theodore Meron, War Crimes Comes of Age: Essays (New York: Oxford University Press, 1998) at
224; Report of the International Law Commission on the Work of its Thirty-Ninth Session, UN GAOR,
42d Sess., Supp. No. 10, UN Doc. A/42/10 (1987) at 16-20. Obedience to superior orders is not a
defence under customary international law to an international crime when the order is manifestly
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
Most experts, in contrast, emphasize that even though efforts to codify the
rejection of the superior orders defence failed, developing international law
eliminates the defence in the case of orders that are manifestly illegal.73 This leaves
the defence available to soldiers who can show that the orders they followed were not
clearly and obviously illegal. Chief sources for this idea of an emerging international
legal norm on the subject are the charters authorizing international tribunals in the
past decade. Thus, the United Nations Security Council followed the Nuremberg
Tribunals rejection of superior orders when it authorized the ad hoc International
Criminal Tribunal for the Former Yugoslavia (ICTY).74 That tribunal in a recent
case ruled that the sheer presence of superior orders is neither a defence nor sufficient
evidence of duress to serve as a defence.75 In a separate dissenting opinion, Chief
illegal, but [i]f the subordinate is coerced or compelled to carry out the order, the norms for the
defense of coercion (compulsion) should apply as mitigation (Cherif Bassiouni, Crimes Against
Humanity in International Criminal Law, 2d ed. (The Hague: Kluwer Law International, 1999) at
483).
73 The resolution by the United Nations General Assembly at its first session in 1946 affirmed the
principles of international law recognized by the Charter of the Nrnberg Tribunal and the judgment
of the Tribunal (Affirmation of the Principles of International Law Recognized by the Charter of the
Nrnberg Tribunal, GA Res. 95(I), UN GAOR, 1st Sess., UN Doc. A/RES/95(I) (1946) 188). For an
example of analysis using this resolution to presume continuity in international law, absent the explicit
contrary authority in the authorization of new tribunals, see Christopher Staker, Defence of Superior
Orders Revisited (2005) 79 Austl. L.J. 431 at 431-32.
21
74 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia
since 1991 (1993), Annex to Report of the Secretary-General pursuant to paragraph 2 of Security
Council Resolution 808 (1993), supra note 72, 134 [ICTY Statute]. The United Nations proceeded
with very similar language when it authorized the International Criminal Tribunal for Rwanda. See
Statute of the International Tribunal for Rwanda, Annex to SC Res. 955, UN SCOR, 49th Sess., UN
Doc. S/RES/955 (1994) 15 [ICTR Statute]. For the adoption of these respective statutes, see SC Res.
827, UN SCOR, 48th Sess., UN Doc. S/RES/827 (1993) 29 at para. 2 (Yugoslavia) and SC Res. 955,
ibid. at para. 1 (Rwanda).
75 Although these abstract statements have not yet received much application in practice, the ICTY
has reinforced the principle that following superior orders by itself does not supply a defence to a
charge of war crimes, genocide, or crimes against humanity. In a case that did not squarely raise the
question, four judges of the ICTY emphasized that acting in compliance with superior orders cannot
by itself serve as a defence; a threat to the defendants life or limb could supply evidence of duress,
but the presence of orders would not satisfy the requirements of this defence. See Prosecutor v.
Drazen Erdemovic, IT-96-22-A, Separate and Dissenting Opinion of Judge Cassesse (7 October 1997)
(ICTY, Appeals Chamber); Prosecutor v. Drazen Erdemovic, IT-96-22-A, Joint Separate Opinion of
Judge McDonald and Judge Vohrah (7 October 1997) at paras. 34-36 (ICTY, Appeals Chamber);
Prosecutor v. Drazen Erdemovic, IT-96-22-A, Separate and Dissenting Opinion of Judge Stephen (7
October 1997) at paras. 59-60 (ICTY, Appeals Chamber). The Trial Chamber of the ICTY has
subsequently recognized this distinction between superior orders and duress. The tribunal concluded
that the defendant was acting in accordance with the orders of a commanding officer but found no
evidence of threats causing duress when the defendant participated in a massacre of around two
hundred civilians. See Prosecutor v. Darko Mrda, IT-02-59-S, Sentencing Judgment (31 March 2004)
at para. 67 (ICTY, Trial Chamber I). Moreover, the tribunal emphasized that orders to participate in
the massacre were so manifestly unlawful that the defendant must have been well aware that they
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Judge Antonio Cassesse maintained that not only does an illegal order provide no
defence but that a soldier also has a duty to disobey an order that is manifestly
illegal.76
The United Nations authorizations for the ad hoc International Criminal Tribunal
for Rwanda and the Special Court for Sierra Leone each omit superior orders as a
defence but permit the use of superior orders to mitigate punishment.77 After some
initial ambiguity, so have the Special Panels to hear Serious Crimes in East Timor78
and the Statute of the Iraqi Special Tribunal, signed by the administrator of the
Coalition Provision Authority.79 Yet while each uses the same approach, denying a
defence based on superior orders but permitting mitigation if justice so requires, there
are complications. Superior orders did supply a defence at the time the mass violence
in East Timor was committed, so the tribunals elimination of the defence raises the
danger of punishment under a retroactive law.80 In addition, an illegal order may still
give rise to a defence without any assessment of whether it was manifestly illegal.81
Given these ambiguities, one scholar recently proposed that the United States permit
detainees in Guantnamo to assert the superior orders defence.82
violated the most elementary laws of war and the basic dictates of humanity. Therefore, reasoned the
court, the fact that the defendant obeyed such orders, as opposed to acting on his own initiative, does
not merit mitigation of punishment (ibid.).
76 Prosecutor v. Drazen Erdemovic, IT-96-22-A, Separate and Dissenting Opinion of Judge
Cassesse, ibid. at paras. 14-19.
77 For Rwanda, see ICTR Statute, supra note 74, art. 6(1). For Sierra Leone, see Statute of the
Special Court for Sierra Leone, Enclosure to UN SC, Report of the Secretary-General on the
establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915 (October 2000), art. 6(4)
[mimeo.] [SCSL Statute] (The fact that an accused person acted pursuant to an order of a Government
or of a superior shall not relieve him or her of criminal responsibility, but may be considered in
mitigation of punishment if the Special Court determines that justice so requires). See also
Prosecutor v. Morris Kallon, SCSL-2004-14-AR72E, Decision on Constitutionality and Lack of
Jurisdiction (13 March 2004) at para. 62 (Special Court for Sierra Leone, Appeals Chamber).
78 On the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offenses,
TAET Reg. 2000/15, UN Doc. UNTAET/REG/2000/15, s. 21 [mimeo.]. For illustration of ambiguity
in initial drafts, see Human Rights Watch, Unfinished Business: Justice for East Timor (August
2000), online: Human Rights Watch
79 The Statute of the Iraqi Special Tribunal, GC/Law/10 December 2003/1, Al Waqai Al-Iraqiya
Official Gazette of Iraq 2003, vol. 44, No. 3980 at 127, art. 15(e). For delegation of authority for the
tribunal, see Coalition Provisional Authority, Order 48, Appendix A, The Statute of the Iraqi Special
Tribunal, CPA/Ord/10 December 2003/48, Al Waqai Al-Iraqiya Official Gazette of Iraq 2003, Vol. 44
No. 3980 at 125.
80 See Linton & Reiger, supra note 65 at 34.
81 See ibid. at 44 (considering application of the defence in the East Timor situation). The authors
also suggest that the cultural context may make obedience to orders especially compelling there (ibid.
at 45).
82 See James. B. Insco, Defense of Superior Orders Before Military Commissions (2003) 13 Duke
J. Comp. & Intl L. 389 at 416-17 (proposing that detainees should be able to assert the defence in
order to identify their intentions and whether they had acted under duress or mistake).
23
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
The drafters of the treaty authorizing the International Criminal Court departed
from the other recent statements by permitting the defence where the order, given by
a superior to a subordinate, was not manifestly unlawful and where the soldier did not
know the order was unlawful.83 A soldier charged with war crimesthough not
genocide or crimes against humanitycan defend himself or herself from criminal
liability by satisfying three conditions: that he or she was legally obligated to follow
the orders to commit the war crimes, that he or she did not know the orders were
illegal, and that the orders were not on their face manifestly illegal.84 Moreover,
though this seems excessively literal, a soldier charged with war crimes might be able
to assert such a defence if the order in question was not phrased expressly as an order
to commit genocide or an order to commit … crimes against humanity.85 The
appellate panel interpreting this law incorporated the moral choice test, further
expanding the potential availability of the defence to situations where the soldier
experiences duress.86
83 The Rome Statute, supra note 47 authorizing the creation of the Permanent International Criminal
Court, makes clear that it is no defence to follow orders that are manifestly illegal, and it defines
orders to commit genocide and crimes against humanity as manifestly illegal. Yet, it specifically
permits the defence in other circumstances. Article 33 of the Rome Statute, entitled Superior orders
and prescription of law, states:
(1) The fact that a crime within the jurisdiction of the Court has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or civilian, shall not relieve that person of criminal responsibility
unless:
Government or the superior in question;
(2) For the purposes of this article, orders to commit genocide or crimes
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
(a) The person was under a legal obligation to obey orders of the
against humanity are manifestly unlawful (ibid.).
Although the ICC has not yet interpreted this statute, it seems to permit the defence in circumstances
that the other tribunals would forbid. One scholar argues that although a defence of superior orders is
now expressly recognised in Art 33 of the ICC Statute, that defence does not yet form part of
customary international law. Rather, in customary international law, the Nuremberg principle still
prevails, according to which superior orders is no defence but may be taken into account in mitigation
of sentence (Staker, supra note 73 at 446). Staker warns that inconsistencies between the ICC and the
Nuremberg principle could produce different results based entirely on where a person happens to be
tried (ibid. at 447).
84 Rome Statute, ibid., art. 33(1).
85 Ibid., art. 33(2).
86 See Prosecutor v. Drazen Erdemovic, IT-96-22-T, Sentencing Judgment (29 November 1996) at
paras. 14-19 (ICTY, Trial Chamber); Prosecutor v. Drazen Erdemovic, IT-96-22-A, Judgment (7
October 1997) (ICTY, Appeals Chamber). See also Garraway, supra note 64; Paola Gaeta, The
Defence of Superior Orders: The Statute of the International Criminal Court versus Customary
International Law (1999) 10 E.J.I.L. 172 at 173, 184, 187.
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Several countries committed to the ICC have already amended their domestic law
to match the ICC standard on superior orders.87 If many come to do so, this could
change the status of the defence in customary international law, for it would show a
shift in custom. In the meantime, without having endorsed the ICC, the United States
has indicated room for the defence under limited circumstances. Thus, the U.S.
Manual for Courts-Martial currently permits the defence as follows: It is a defense
to any offense that the accused was acting pursuant to orders unless the accused knew
the orders to be unlawful or a person of ordinary sense and understanding would have
known the orders to be unlawful.88 This provision not only permits superior orders as
a defence but does so when a person of ordinary sense and understanding would not
realize that the order is unlawful. By pegging the standard to the person of ordinary
sense and understanding, this version extends the defence beyond an objective test of
illegality to a standard considering ordinary persons knowledge of the law.
Moreover, the manual indicates that doubts about the legality of an order are to be
resolved in favour of its legality.89
The Canadian version permits the defence except if the order was manifestly
unlawful to a reasonable soldier under the circumstances.90 It adopts a definition of
manifest illegality as that which is obviously and flagrantly wrong.91 Variations
over time, across nations, and among tribunals render doubtful the assertion that the
87 See Staker, supra note 73 at 442-46 (describing efforts by Australia, New Zealand, and the United
Kingdom to bring their domestic laws in line with the ICC treatment of superior orders).
88 U.S., Department of Defense, Manual for Courts-Martial (2005), R.C.M. 916(d), online: Air
University, Maxwell-Gunter Air Force Base
[Manual for Courts-Martial]. The manuals Discussion of the rule explains, An act performed
pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of
ordinary sense and understanding would have known it to be unlawful, and notes that [o]rdinarily
the lawfulness of an order is finally decided by the military judge (ibid. at II-109).
89 Despite procedural variations across Western nations, doubts about an orders legality are
generally to be resolved in favour of their legality for purposes of the defence of illegal orders. U.S.
law historically directed soldiers to presume orders to be lawful, and therefore courts martial are to
place on the soldier who disobeys an order that is not patently illegal the burden of rebutting the
inference of lawfulness. See ibid. at para. 14(c)(2)(a)(i); Keijzer, supra note 50 at 97, 133 (comparing
court martial rules in the U.S., U.K., France, the Netherlands, and Israel).
90 An act is performed in compliance with an order which is manifestly unlawful to a reasonable
soldier given the circumstances prevailing at the time does not constitute a defence and cannot be
pleaded in mitigation of punishment (Canada, Department of National Defence, Law of Armed
Conflict at the Operational and Tactical Levels (Ottawa: Department of National Defence, 2003) at
para. 1615.2, online: Office of the Judge Advocate General
manifest illegality, following orders can supply a defence in Canada.
91 Ibid., citing R. v. Finta, [1994] 1 S.C.R. 701 at 834, 112 D.L.R. (4th) 513, Cory J. The JAG
Manual further cites Cory J. to the effect that in order for an order to be considered manifestly
unlawful, [i]t must be one that offends the conscience of every reasonable, right thinking person. It
must be an order which is obviously and flagrantly wrong (ibid.).
25
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
Nuremberg Tribunal rejected the superior orders defence as a matter of international
law.
No single international norm governing the defence of superior orders currently
exists. The following variations currently govern in different settings: there is no
defence of following superior orders but superior orders provide grounds for
mitigation;92 superior orders do supply a defence but only if the subordinate person
did not know it was illegal and it was not manifestly illegal;93 superior orders do
supply a defence but only if the subordinate had no moral choice or latitude for free
action;94 and superior orders supply a defence if a person of ordinary sense and
understanding would not know that the order is illegal.95 Taken together, these
articulations imply that there exists a set of orders that lies between the manifestly
illegal order and the order that could be illegal, but is not manifestly so, and that this
intermediate order could indeed be the basis for a defence against charges of
atrocity.96 This nuanced idea and each of the specific efforts to articulate the norm
complicate
individual
responsibility. Whether phrased as a defence or instead as mitigation of punishment,
the line between acceptable and unacceptable obedience to superior orders is not
likely to produce clarity or changes in soldiers conduct. Yet even these complications
pale as a problem when compared with the psychological barriers to resisting orders
or pressures to participate in wartime abuses.
that soldiers and others receive about
the message
III. Moral Development and Psychological Theories: Why
Resistance to Orders is Difficult
Each of the versions of the rule poses serious difficulties of comprehension and
compliance. For each of them requires individual soldiers to obey directives from
superiors but also to disobey under a very limited set of circumstances. The soldier is
told simultaneously, Obey all orders and Do not obey a manifestly illegal one or
one to commit a genocide. Under some versions, the soldier is told, You will not
face the full brunt of punishment if you did not know the order was illegal and other
people of ordinary intelligence and knowledge did not know that either, but you will
still face some punishment. Thus, you should take responsibility unless you cannot;
92 See Charter of the IMT, supra note 60, art. 8; SCSL Statute, supra note 77, art. 6(4).
93 See Rome Statute, supra note 47, art. 33.
94 See generally Levine, supra note 58. The impact of hierarchy on the subjects sense of choice
may well vary depending on setting. Thus, the soldier may feel there is no choice but to obey,
knowing what the orders entail. In contrast, the member of a civilian bureaucracy may not know there
is a need to make a choice because the orders have no known link to a harmful outcome (Herbert C.
Kelman & V. Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and
Responsibility (New Haven: Yale University Press, 1989) at 315 [emphasis in original]).
95 See Manual for Courts-Martial, supra note 88, R.C.M. 916(d).
96 The Rome Statute, supra note 47, art. 33(2) clarifies that superior orders never supply a defence in
the ICC if the charges are genocide or crimes against humanity.
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you should obey all orders unless you think you should not. Under the version
emphasizing the soldiers moral choice, the message is: You should resist an illegal
order unless you cannothowever, people later will assess whether you could not.
These difficulties with the legal treatment of superior orders may come to mind
simply through common sense. But they are substantiated by research in moral
psychology, social psychology, and cognitive psychology. Five insights from these
fields expose the enormous and perhaps insurmountable difficulties in training
soldiers to prevent atrocity.97
A. Insights from Psychological Research
1. Cognitive Dissonance
Using superior orders as a defence or as mitigation of punishment effectively
summons competing and indeed contradictory beliefs about authority. This is the
classic set-up for what psychologists call cognitive dissonance. When we are in the
presence of two conflicting messages, over time we drive one out of view because the
dissonance itself is too difficult to bear.98 As a result, we may try to change one or
more of the conflicting beliefs, opinions, or behaviours to reduce the dissonance; we
may look for new information to reconcile the conflicting views. Given the situation
of hierarchical command, obedience to the immediate superior is the view likely to
prevail. In any case, many people will find it hard to hold onto both the view that
each order from a commander deserves respect and obedience and the view that the
superiors orders can be grossly illegal and must be disobeyed.
2. Heuristics and Baseline References
Another body of psychological research suggests that the specific formulation of
the rule about superior orders is likely to affect how it is perceived and what
judgments it generates. Research into heuristics and bias suggests that people
overemphasize an anchor or starting point when making judgments involving a
comparison between that starting point and something else; the anchor seems to affect
97 Social scientists turned to such questions not only because of the Nuremberg trials, but also after
the trial of Lt. Calley following the My Lai Massacre during the Vietnam War. See Kelman &
Hamilton, supra note 94.
98 See Eddie Harmon-Jones & Judson Mills, An Introduction to Cognitive Dissonance Theory and
an Overview of Current Perspectives on the Theory in Eddie Harmon-Jones & Judson Mills, eds.,
Cognitive Dissonance: Progress on a Pivotal Theory in Social Psychology (Washington, D.C.:
American Psychological Association, 1999) 3. Festinger, who originated research on the topic,
indicated that people tend to try to reduce cognitive dissonance by changing one of the beliefs
involved in the dissonance, trying to reduce the importance of one of the beliefs, or else trying to
acquire new information or beliefs that will make the conflicting views seem consonant. See Leon
Festinger, A Theory of Cognitive Dissonance (Stanford: Stanford University Press, 1957) at 25-26.
27
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
attention and predispose the person to certain conclusions rather than others.99
Similarly, research on reference points indicates that the selected reference point
affects perceptions and the way people assign value to options.100 Hence, the starting
point that treats superior orders as presumptively legal is going to affect people
differently than the version stating that superior orders are no defence except under
limited circumstances, even if semantically the two versions have the same meaning.
Any training of soldiers that states the superior orders rule to emphasize that there is
no defence based on manifestly illegal orders will invite disobedience with more
salience than a statement of the rule emphasizing that, in the ordinary case, superior
orders are due deference. Other researchabout stages of moral development and
studies of obedience and conformitysuggests dimensions of human behaviour that
may well swamp the cognitive response to the statement of the rules governing
superior orders or the lawfulness of the orders.
3. Kohlbergs Stages of Moral Development
Lawrence Kohlberg researched how moral reasoning shifts over the course of
human development. Based on an assessment tool used to catalogue the methods and
sophistication of individuals based on their responses to descriptions of hypothetical
moral dilemmas, Kohlberg articulated six stages of moral development. These stages
can illuminate how different people, with different degrees of sophistication in moral
reasoning, would approach the conflict between following superior military orders
and following conscience or moral conceptions.101 Kohlbergs work suggests that the
moral reasoning of most adolescents and many adults is characterized by commitment
to following conventions and authority. These individuals will not be likely to
articulate a duty to resist manifestly illegal orders.
99 See Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases
in Daniel Kahneman, Paul Slovic & Amos Tversky, eds., Judgment Under Uncertainty: Heuristics
and Biases (Cambridge: Cambridge University Press, 1982) 3 at 14-18; Paul Slovic, Baruch Fischhoff
& Sarah Lichtenstein, Facts Versus Fears: Understanding Perceived Risk in Kahneman, Slovic &
Tversky, ibid., 463 at 481-82; Daniel Kahneman, Reference Points, Anchors, Norms, and Mixed
Feelings (1992) 51 Organizational Behavior and Human Decision Processes 296.
100 See H.R. Arkes, Cost and Benefits of Judgment Errors: Implications for Decisions (1991) 110
Psychological Bulletin 486.
101 What follows draws upon William C. Crain, Theories of Development: Concepts and
Applications (Englewood Cliffs, N.J.: Prentice Hall, 1980); Lawrence Kohlberg & Elliot Turiel,
Moral Development and Moral Education in Gerald S. Lesser, ed., Psychology and
Educational Practice (Glenview, Ill.: Scott, Foresman, 1971); Jean Piaget, The Moral Judgment of
The Child, trans. by Marjorie Gabain (New York: Free Press Paperbacks, 1997); F. Clark Power, Ann
Higgins & Lawrence Kohlberg, Lawrence Kohlbergs Approach to Moral Education: Critical
Assessments of Contemporary Psychology (New York: Columbia University Press, 1989); Joseph
Reimer, Diana Pritchard Paolitto, & Richard H. Hersh, Promoting Moral Growth: From Piaget to
Kohlberg, 2d ed. (New York: Longman, 1983).
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Kohlberg built on Jean Piagets theories of human development, from childhood
through adulthood, and from concrete to abstract thinking. Kohlberg studied how
individuals over the course of their lives think in moral terms. He identified six stages
of human development in thinking about moral issues.102 Most people, he argued,
progress at least through the first several stages and very few reach the highest stage
of development.
Kohlberg and others working with him found that young children start by
thinking of themselves rather selfishly, and not in terms of membership in society.
Young children thus talk about the right thing to do in terms of obedience: they think
they should do the right thing in order to avoid punishment. When they advance a bit,
they move to thinking in terms of their own self-interest but understanding that in
order to get what they want, they may need to bargain or do things in exchange. At
this stage the child does not simply equate punishment with wrongfulness but rather
views punishment as a risk.
Most teenagers attain what Kohlberg called the conventional mode: they think
about doing the right thing in order to develop and maintain good interpersonal
relationships and in order to be a good girl or good boy. When asked what people
should do in response to particular moral dilemmas, at this stage a person tends to say
that everyone should conform to prevailing laws or norms. A more advanced version
of this emerges for many by the end of high school. Individuals at this stage justify
conformity in light of larger social purposes, like the need to maintain social order.
Many people progress and come to use more abstract thinking about the need to
coordinate people with different interests and needs. Typically, they use more
complex bases to justify adherence to collective rules and respect for the collective
arrangements specified by a constitution, including the respect accorded to individual
rights of speech and autonomy. People who reason this way may call for improving
society generally to incorporate moral views into laws.
102 The following table has been adapted from Kohlbergs work. In addition to the sources listed in
note 101, see e.g. Lawrence Kohlberg, The Philosophy of Moral Development: Moral Stages and the
Idea of Justice, vol. 1 (San Francisco: Harper & Row, 1981) at 17-19.
Level
Preconventional
Preconventional
Conventional
Conventional
Postconventional
Postconventional
Stage
1
2
3
4
5
6
instrumentalism,
Social Orientation
obedience/punishment
individualism,
and exchange
good interpersonal relationships,
good girl / good boy
maintaining social order,
law and order
social contract and
individual rights
principled conscience
29
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Finally, a limited number of people (Mahatma Ghandi and, as it turns out,
Lawrence Kohlberg) develop beyond even this advanced stage to offer complicated
assessments of right and wrong, based on universal principles and not whim or even
merely national norms. Kohlberg noted how Mahatma Gandhis thought took this
advanced form.
There is a striking convergence between Kohlbergs language and the problem
for the soldier who is instructed both to follow orders and to remember that it is no
defence to genocide or war crimes to say that he or she was following orders.
Kohlbergs stage theory may seem to imply that we each move through the phases of
moral development over the course of a lifetime.103 If that were the case, younger
people would think it right simply to follow superior orders and conform with the
conduct of other soldiers; adults would come to think independently about what
morality requires and about acting according to their own conscience.104
Yet not every person follows the path laid out in Kohlbergs stages, and dilemmas
about dealing with orders arise even within stages. Thus, even the child who is
focused on the risk of punishment faces tension between the punishment by the
superior and the punishment by peers. When they think about moral conduct, soldiers
who are concerned primarily with maintaining good interpersonal relationships and
with being a good solider will choose conformity and look to peers as well as
authority figures. This preoccupation with conformity may characterize the majority
of soldiers in the volunteer military. Many young people enter the military after high
schoolor, these days, accept recruitment before they finish high school. Many lack
the cognitive and emotional sophistication to distinguish compliance with moral
ideals from compliance with orders or peer pressure. A military that recognizes this
pattern among its soldiers must cultivate leaders, organizational structures, and a peer
culture committed to resisting rather than sliding into atrocities, even under the stress
of war.105
103 Kohlberg controversially argued that the stages he identified are both universal, in the sense of
being cross-cultural, and invariable, in the sense that every individual moves through each stage in the
order listed until he or she stops somewhere on the path of development. See ibid. at 20ff., c. 4. Many
critics through the years have challenged the assumption of invariable stage development and
progression and universality of the stages. Critics have faulted the work for cultural and gender bias
and what some would call self-referentialism. See e.g. Carol Gilligan, In a Different Voice:
Psychological Theory and Womens Development (Cambridge, Mass.: Harvard University Press,
1982) at 18, 21-22, 25-27, 30-31, 54-55, 82; Sohan Modgil & Colin Modgil, eds., Lawrence
Kohlberg: Consensus and Controversy (Philadelphia: Falmer Press, 1986). For responses to the critics,
see Lawrence Kohlberg, Charles Levine & Alexandra Hewer, Moral Stages: A Current Formulation
and a Response to Critics (New York: Karger, 1983).
104 Research has not established that educational programs will enhance either the complexity of the
students moral reasoning or the likelihood that the student will behave differentlyfor example, will
resist illegal authority.
105 This conclusion departs from Kohlbergs own prescriptions, which focused on cognitive
development and involved presenting students with moral dilemmas that would challenge them to
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4. Milgrams Studies of Obedience
The controversial and influential studies of obedience by Stanley Milgram
precisely address the issue of following orders raised by criminal defendants at the
Nuremberg war crimes trials.106 Milgram set up a task in which the volunteer would
play the role of a teacher who was to help a learner learn a list of words. The
volunteer teachers were told to administer an electric shock, with increasing voltage,
each time the learner made a mistake. These were not actual electric shocks, but the
volunteers did not know that. The fictitious story told to these volunteer teachers
was that the experiment was exploring effects of punishment (for incorrect responses)
on learning behaviour. The teacher was not aware that the learner in the study was
actually an actor, merely simulating discomfort as the teacher increased the electric
shocks. An experimenter in the booth with the teacher would encourage the teacher
to push the volt-delivering button when the teacher expressed reluctance. In fact, the
experimenters would tell the teachers that they had no choice but to deliver the
shocks.
The experimenters and the learners were confederates, employed by
Milgram. The volunteer teachers initially received assurance that there would be no
lasting physical damage, but they heard and watched manifestly painful reactions to
the shocks that they delivered; nonetheless, most went ahead. In Milgrams
repeated runs of the experiment, sixty-five per cent of the teachers were willing to
administer the maximum shock of 450 volts despite the cries of pain and screams for
mercy. No volunteer stopped before reaching what was marked as 300 volts. Some of
the volunteers asked who would be responsible for any harmful effects resulting from
shocking the learner at such a high level. When the experimenter answered that he
assumed full responsibility, volunteers seemed to accept the response and continue to
think in more sophisticated ways. Kohlberg prescribed educational programs in light of his research.
He developed materials for a form of moral education that would push people to experience
limitations of their current stage by posing dilemmas that would prompt them even to rethink their
premises and move to more complex levels of analysis. See Lawrence Kohlberg, Stage and
Sequence: The Cognitive-Developmental Approach to Socialization in David A. Golsin, ed.,
Handbook of Socialization Theory and Research (Chicago: Rand McNally, 1969) 347; F. Clark
Power, Ann Higgins, & Lawrence Kohlberg, supra note 101. It remains unclear whether pedagogy
addressing moral dilemmas promotes enduring cognitive advances in approaching moral dilemmas,
and whether any cognitive development translates into desirable behavioural outcomes.
106 See Stanley Milgram, Obedience to Authority: An Experimental View (New York: Harper &
Row, 1973); Thomas Blass, The Social Psychology of Stanley Milgram in Mark P. Zanna, ed.,
Advances in Experimental Social Psychology, vol. 25 (San Diego: Academic Press, 1992) 277. See
also Stanley Milgram, Obedience, 1965, VHS (University Park, Pa.: Penn State Audio-Visual
Services, 1969); Elaine Cassel, Why Do People Want To Be Executioners? A Review of The Last
Face Youll Ever See by Ivan Solotaroff, Book Review, online: Houghton Mifflin College Division
31
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administer the shocks, even though many expressed great discomfort with it and
tried to resolve the conflict by conveying complaints to the experimenter.107
These and subsequent studies raised many questions about how the subjects
could bring themselves to administer such heavy shocks and about the ethical issues
in conducting such research.108 Follow-up studies found that factors associated with
increased obedience include perceived legitimacy of the authority figure, greater
distance from the victim, closer supervision by the authority figure, and the presence
of people who modelled obedience.109 Yet studies of nurses showed a strong tendency
to follow instructions to deliver an excessive dose of medication even though the
order came over the telephone from an unfamiliar physician.110
Milgrams work has had real influence, including on the U.S. military. His
biographer Thomas Blass reports that Milgrams work had been integrated into two
psychology courses in the U.S. Military Academy in 1985, and his work continues to
remain influential in training soldiers how to disobey illegitimate orders.111 The
head of the academys Department of Behavioral Sciences and Leadership wrote in
1985, One of the desired outcomes of this is that our future military leaders will be
107 The preceding description of Milgrams experiments draws from the following sources in
addition to the sources listed in note 106: Stanley Milgram, Behavior Study of Obedience (1963) 67
Journal of Abnormal and Social Psychology 371; Stanley Milgram, Group Pressure and Action
Against a Person (1964) 69 Journal of Abnormal and Social Psychology 137. See also Kelman &
Hamilton, supra note 94 at 152-53; James Waller, Becoming Evil: How Ordinary People Commit
Genocide and Mass Killing (New York: Oxford University Press, 2002) at 121-22, 209, 236, 249, 251,
274; Arthur G. Miller, Barry E. Collins & Diana E. Brief, Perspectives on Obedience to Authority:
The Legacy of the Milgram Experiments (1995) 51:3 Journal of Social Issues 1.
108 See Stanley Milgrams Experiment, online: College of Business Administration, University of
Rhode Island
109 See Kelman & Hamilton, supra note 94 at 162-66; Waller, supra note 107 at 105-106; Wim H.J.
Meeus & Quinten A.W. Raaijmakers, Obedience in Modern Society: The Utrecht Studies (1995)
51:3 Journal of Social Issues 155 at 159, 163. One scholar maintains that social psychological factors,
such as peer behaviour and the difficulty of knowing or achieving personal goals in social
conversation, influenced the level of compliance by subjects in these experiments. See Neil Lutsky,
When Is Obedience Obedience? Conceptual and Historical Commentary (1995) 51:3 Journal of
Social Issues 55 at 57-62. If this is so, these factors suggest that peer influence and personal interests
may contribute to the commission of atrocities alongside or instead of the sense of a duty to obey.
110 See Charles K. Hofling et al., An Experimental Study in Nurse-Physician Relationships (1966)
143 Journal of Nervous and Mental Disease 171. On the compliance and disobedience of nurses to
physician orders, see generally Annamarie Krackow & Thomas Blass, When Nurses Obey or Defy
Inappropriate Physician Orders: Attributional Differences (1995) 10 Journal of Social Behavior and
Personality 585.
111 Thomas Blass, The Man Who Shocked the World: The Life and Legacy of Stanley Milgram (New
York: Basic Books, 2004) at 278 [Blass, Man Who Shocked] [emphasis in original]. See also Thomas
Blass, The Man Who Shocked the World Psychology Today 35:2 (March/April 2002) 68 at 73
[Blass, 2002]. The studies formed the basis of a television drama, 60 Minutes: The Tenth Level (CBS
television broadcast) and many articles in popular media. Milgrams work has been translated into
eleven languages. See Waller, supra note 107 at 102-103.
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fully cognizant not only of their authority but also of their responsibility to make
decisions that are well considered and morally sound.112
Critics not only addressed the ethics of conducting such experiments113 but also
explored whether the tendency to obey reflects an inevitable deference to authority or
instead a response to particular features of the situation.114 One scholar recently
concluded that despite the gap between the laboratory setting and combat situations,
Milgram correctly focuses our attention on the social and situational pressures that
can lead ordinary people to commit extraordinary evil.115 Less enduring is Milgrams
claim that such behaviour stemmed from a kind of shift into the role of passive agent
without a sense of personal responsibility; neither his own evidence nor subsequent
work substantiates the claim that the shifting out of a sense of personal responsibility
or the development of a separate self is necessary to commit great harm.116
Milgrams work has thus supported educational interventions on the premise that
self-awareness for both authority figures and those who follow them can mitigate the
risk of unswerving obedience to illegal commands. Subsequent work on obedience
has produced greater attention to the effects of context, internalization of roles,
dehumanization of victims, and peer conformity.117 In a parallel inquiry, Philip
Zimbardo and others conducted the Stanford Prison Experiment in 1971 in which
undergraduates received random assignments, some to play the role of prison guard,
others to play the role of prisoner.118 In a few days, many of the guards became
aggressive and abusive, and many of the prisoners became passive, submissive, or
depressed.119 Zimbardo later explained, When people are deindividualized, they are
112 Quoted in Blass, 2002, ibid. at 73.
113 See Blass, Man Who Shocked, supra note 111 at 111-30; Alan C. Elms, Obedience in
Retrospect (1995) 51:3 Journal of Social Issues 21 at 26-27. Milgrams study may be more famous
for having ushered in rigorous restrictions on the use of human subjects in experiments. Ethics
considerations and concerns that some of the subjects in Milgrams work may have experienced
unhappiness and even trauma triggered a process of self-examination among university and hospital
authorities about the methods used by experimenters, leading ultimately to greater regulation. See
ibid.
114 See Thomas Blass, ed., Obedience to Authority: Current Perspectives on the Milgram Paradigm
(Mahwah, N.J.: Lawrence Erlbaum Associates, 2000); Moti Nissani, A Cognitive Reinterpretation of
Stanley Milgrams Observations on Obedience to Authority, Comment, (1990) 45 American
Psychologist 1384 at 1384.
115 Waller, supra note 107 at 108. Waller notes that Milgrams subjects did not have certain
knowledge that their actions would produce lasting damage; they did not experience years of
socialization devaluing the victims; they did not show the kind of sadism sometimes exhibited by
perpetrators of mass violence; and they did not have long periods of time in which to act or reflect on
their actions (ibid. at 107-108).
116 See ibid. at 111, 120-123. See also Nissani, supra note 114.
117 See Waller, supra note 107 at 133-35, 180-82, 195-96, 202-20, 225-30, 247-49.
118 Craig Haney, Curtis Banks & Philip Zimbardo, Interpersonal Dynamics in a Simulated Prison
(1973) 1 International Journal of Criminology and Penology 69.
119 Ibid. See also Philip G. Zimbardo, Stanford Prison Experiment, online: Stanford Prison
Experiment
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usually put in herds, or groups, and given numbers. Their identity is taken away.120
Zimbardo concluded that the abuses by guards in the Abu Ghraib prison were
predictable because the guards had a mob mentality, a group mindset. You start to do
things because other people in your group are doing them.121 The loss of individual
identity in the situation reflects elements of conformity as much as obedience.122 This
points toward another line of research.
33
5. Studies of Conformity
One more set of insights relevant to the issue of obeying orders deals with the
dynamics of group conformity and social cohesion. Psychologist Solomon Asch
showed that an individual is likely to go along with the statements of others about the
perceived length of lines on a card; three quarters of subjects in the experiment
conformed at least once even though that meant suppressing their knowledge of an
obvious fact.123 More recent efforts to replicate the study fail to do so. That has led
psychologists to conclude that conformity is affected by culture, child-rearing, and
other factors, and does not represent a stable feature of human interactions.124
Yet studies of processes of social obedience indicate that some people comply
with directed behaviour not because they believe it, but because it will achieve an
effect they want. Such effects can include avoiding conflict with a closely supervising
authority figure.125 Conformity can similarly appeal to those who want to avoid being
ridiculed or rejected by peers, and conformity pressures increase in groups with
cohesive ties built by affection or mutual dependence. The military epitomizes such a
group.
120 Quoted in Nastassia Lopez, Abuse At Iraqi Prison Predictable, Decades-Old Study Shows
MTV (27 May 2004), online: MTV
121 Ibid.
122 Willingness to torture also goes beyond obedience to authority often in involving the individual
in a culture of violence, turning torture into normal behaviour. See Mika Haritos-Fatouros, The
Official Torturer: A Learning Model of Obedience to the Authority of Violence in Ronald D.
Crelinsten & Alex P. Schmid, eds., The Politics of Pain: Torturers and Their Masters (Boulder, Colo.:
Westview Press, 1995) 129.
123 See Solomon E. Asch, Studies of Independence and Conformity: I. A Minority of One Against a
Unanimous Majority (1956) 70:9 Psychological Monographs 1 at 9-10. See also S.E. Asch, Effects
of Group Pressure Upon the Modification and Distortion of Judgments in Harold Guetzkow, ed.,
Groups, Leadership and Men (New York: Russell & Russell, 1963) 177; Solomon E. Asch, Social
Psychology (New York: Prentice Hall, 1952) at 450-59.
124 See Marie-France Lalancette & Lionel Standing, Asch Fails Again (1990) 18 Social Behavior
and Personality 7; Steven Perrin & Christopher Spencer, The Asch EffectA Child of Its Time?
(1980) 33 Bulletin of the British Psychological Society 405.
125 See Kelman & Hamilton, supra note 94. They distinguish this stance from identification, when
one is oriented toward fulfilling a role that calls for the behaviour in question, and from
internalization, when someone accepts the authority because it matches his or her own value system.
See ibid. at 103-16.
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The power of conformity as an influence when members of the military follow
orders to kill civilians is exhibited in Christopher Brownings historical study of a
battalion of German policemen pressed into service in World War II.126 This battalion
was responsible for killing 38,000 Jews. Browning studied interviews conducted after
the war with the men who mainly returned to their homes and ordinary lives. On the
first day of the mass killing, the commander permitted members of the battalion to opt
out of the killing. A handful did at first, and more did over the course of the day, but
no more than twenty per cent ever did. Most indicated horror or disgust over their
involvement in the massacre. Browning concluded that group conformity and the
desire not to be seen as cowards by others or be ostracized by the battalion helped to
explain their conduct. Some also conceived of their participation as sharing in an
unpleasant collective duty.127 The records of the men also showed that they did not for
the most part have anti-Semitic views at the start of the operation. Many over time
overcame an initial reluctance to participate in the mass slaughter.128 Similar
dynamics seem to accompany the activities of bullies in schools. Peer pressure and
conformity affect classmates who assist, encourage, or simply remain silent in the
face of the bully.129
Peer pressure is one of the key mechanisms through which obedience to higher
authority works. Developing a strong enough sense of self and beliefs to stand up for
what is right often means risking disapproval from peers. How can we expect people
to develop the clear-sightedness to know an illegal order (whether explicit or implicit)
when they see one and to practice resisting authorityand group pressurewhen we
also expect people generally to respect and conform to authority? There is an
unavoidable tension between conformity and independence. Conformity permits
126 Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in
Poland (New York: Harper Collins, 1992).
127 See ibid. at 161, 185.
128 See ibid. Daniel Goldhagen wrote a more controversial piece using some of the same sources
and arguing that the ideology of anti-Semitism, rather than social conformity, motivated these men,
thus making the killings voluntary. See Daniel Jonah Goldhagen, Hitlers Willing Executioners:
Ordinary Germany and the Holocaust (New York: Alfred A. Knopf, 1996). See also Daniel Jonah
Goldhagen, The Evil of Banality, Book Review of Ordinary Men: Reserve Police Battalion 101
and the Final Solution in Poland by Christopher R. Browning, The New Republic 207:3-4 (15 July
1992) 49. In the Afterword of the 1998 reissue of his book, Browning tries to refute Goldhagens
argument. See Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final
Solution in Poland, reissued 1st ed. (New York: Harper Perennial, 1998) at 191-223. See also Waller,
supra note 107 at 29-49 (challenging Goldhagens claims as illogical, unsubstantiated, and unable to
explain other genocides and mass killings). On the importance and rarity of nonconformity in the
context of genocide and mass killings, see Michael Geyer & John W. Boyer, eds., Resistance against
the Third Reich, 1933-1990 (Chicago: University of Chicago Press, 1994) (discussing rare
nonconformists who resisted the Third Reich).
129 See Dan Olweus, Bullying at School: What We Know and What We Can Do (Cambridge, Mass.:
Blackwell, 1993) at 34-35, 43-45. See also David P. Farrington, Understanding and Preventing
Bullying in Michael Tonry, ed., Crime and Justice: A Review of Research, vol. 17 (Chicago:
University of Chicago Press, 1993) 381.
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order but also risks groupthink and even mass atrocity, while independence promotes
resistance to atrocity but risks disorder and inefficiency.
35
B. Learning from Psychology: Ordinary Soldiers Are Not Well Placed
to Prevent Atrocity
Taken together, these five kinds of social science research generate real doubts
about the efficacy of relying on the judgment and conduct of ordinary soldiers to
prevent atrocities that stem from the orders of superiors, the lax supervision of
superiors, or permission by superiors. Cognitive dissonance arises when individuals
are expected both to respect and question superior orders, and the dominant
messagehere, the obligation to follow orderswill most likely push out the
countermessage. As studies of heuristics show, stating the rule about liability for
following superior orders in terms of a prohibition with exceptions will be understood
differently than the emerging statement of the rule as permission with limitations.
Stage development theory underscores that most young soldiers will approach moral
questions by thinking about approval and disapproval by peers and authority figures;
expecting people to distinguish illegal and legal orders neglects the pervasiveness of
this kind of conventional moral thinking and the preference for compliance and
getting along. Holding people responsible or punishable for following orders does not
match evidence about the psychological readiness of individuals to take and follow
orders from people they understand as authority figures. Nor does it comport with
evidence of how ready people are to identify with an assigned role and to conform to
group behaviour. Thus, on the basis of varied sources of social science research, we
can predict that soldiers will follow orders whether legal or illegal, that soldiers will
conform to expectations of superiors and peers, and that soldiers will be unlikely to
resist a commander or peer group authorizing or engaging in atrocities. Indeed, many
or even most of these young soldiers will be inclined to obey authority and to
conformwhether to the commands of the authority or, what is more chilling, to
abusive conduct started by some of their peers.
But excusing people on any of these bases compounds the risks of catastrophic
abuses committed by soldiers and communicates disregard for the values of human
decency and individual responsibility. So what should the military and civilian
authorities do with the defence of superior orders; what should they do to prevent
military atrocities? I argue in the next part for separating these two questions: there
should be a rule regarding superior orders, but the primary effort to prevent military
atrocities must pursue other routes.
IV. What Should We Do to Prevent Atrocities?
If the goal is to minimize atrocities, restricting the ability of soldiers to claim that
they were following orders holds at best limited promise. The varied statements of the
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rule are too confusing,130 and most of the incentives and practices for soldiers point
toward obeying directions and orders. It is the unusual soldier who will resist. Thus,
counting on individual soldier responsibility is an insufficient guard against abuse.
Moreover, pushing the distinction between obviously or manifestly illegal orders and
other kinds of orders as the basis for liability is likely to increase the already obvious
pressure on superior officers to avoid explicit orders that direct genocide or violations
of domestic or international law. If the result is more vagueness in orders, the risks of
atrocity rise rather than decline.
There may be symbolic value but slight practical benefit arising from training
ordinary soldiers to know and remember that they may be held responsible for acts
even when performed under orders or superior direction. How to increase the chances
that such training methods will be effective is worth some consideration, but a chief
value of such training both comes from and depends upon its integration into the
larger value system of the military organizationand hence requires action and
follow-through in the behaviour of the superior officers. In this part, I will offer
further reflections on the superior orders defence, the potential avenues for training,
and the organizational implications of serious efforts to prevent military atrocity.
A. Limited Prevention from Restricting the Superior Orders Defence
It is a truism that no military atrocities can occur without the participation of the
individuals who wield the weapons, abuse the detainees, and kill the civilians. It is
tempting to focus attention on these individuals, to hold them responsible, and to
make them examples for others. Indeed, individual soldiers who murder civilians or
abuse detainees should be held responsible. But doing so is not likely to reach the
deeper causes of military atrocity.
The social and psychological influences on those individuals reach far beyond
their own consciences. Insights from social science indicate good reasons to think that
a person placed in a subordinate position and instructed to obey presumptively
legitimate authority will be likely to follow those orders even if they see them as
wrong. The most effective methods for preventing abuse by the military will most
likely involve (1) organizing military teams, management structure, rewards, and
promotions in order to integrate legal and moral considerations into command
decisions and to create sufficient checks against both illegal commands and lax
supervision; and (2) assigning the specific task of evaluating the legality of orders to
commanders close enough to the field to be able to make concrete decisions guiding
soldier conduct.
Clarifying whether and when following superior orders reduces or eliminates
liability is not likely to prevent military atrocities. Both research and common sense
indicate the near futility of teaching soldiers the rule that superior orders do not shield
130 See Part II, above and Part IV.A., below.
37
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them from punishment or liability for genocide, mass violence, or crimes against
humanity. However formulated, the rule produces cognitive dissonance: sometimes
the soldier should obey without question and sometimes the soldier should question
and not obey. Some formulations may push toward more questioning than others, but
once in the field, this rule is not likely to be foremost in the soldiers mind.
Legal scholar Mark Osiel criticizes the dominant rule that denies a defence to
soldiers who follow superior orders if those orders are manifestly illegal. He argues
that denying a defence to soldiers who follow a manifestly illegal order as a practical
matter imposes a broad duty to obey superior orders that is qualified by an equally
bright-line duty to disobey orders to commit atrocities.131 Osiel notes that this
approach obliges the soldier to comply with orders in the ambiguous middle area,
where orders to commit abuses may be illegal, but not manifestly so. This precise
logical analysis comports with the predictions of the social psychological research
surveyed earlier. Given the competing directives to obey all orders but to expect
liability for obeying manifestly illegal ones, the soldierlikely attached to
conventional morality and influenced by peer pressureis most likely to obey all
orders.
Osiel himself prefers a different rule, one that calls for obedience only to lawful
orders and punishes obedience to unlawful orders except if the soldier makes a
reasonable mistake about the lawfulness of those orders.132 He argues that when
compared with the dominant rule, his rule would put individual soldiers on greater
guard to assess the legality of orders in that zone of ambiguity and would hold more
soldiers responsible for following orders whose lawfulness is ambiguous.133 In effect,
he maintains, his rule would generate more discussion and debate among groups of
soldiers about what is the right thing to do. And, he claims, that in turn would lead to
more awareness by ordinary soldiers of their legal duties.134
131 Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline & the Law of War (New Brunswick,
N.J.: Transaction, 1999) at 287. In conversation with me, Lawrence Blum has pointed out that this
suggestion increases the burden on the individual to take initiative in finding out if an order is illegal
and to resist unlawful ones, but even this heightened pressure accomplishes little if the actual content
of the legal duty is ambiguous.
132 Ibid. at 287-89.
133 Ibid. at 290-91, 293, 295.
134 Osiel also argues that his rule would shift onto the soldier the burden of producing evidence of
knowledge and persuading the relevant tribunal that the soldiers error was honest and reasonable,
while the manifest illegality rule leaves the burden on the prosecution to show that the defendant
knew or should have known that the orders were illegal. See ibid. at 292. However, Osiel has faced
criticism on this point. See Maj. Walter M. Hudson, Book Review of Obeying Orders: Atrocity,
Military Discipline and the Law of War by Mark Osiel, (1999) 161 Mil. L. Rev. 225 at 231-32 (citing
Manual for Courts-Martial, supra note 88, R.C.M. 916(b) to illustrate that Osiel mischaracterized
military law).
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His prediction and claims for his alternative rule implicitly comport with the
insights from heuristics about the importance of the anchoring phrase in a rule.135 But
Osiels proposal otherwise does not match the insights from cognitive dissonance,
stage development, obedience studies, and studies of conformity as conveyed by the
social science research. If the line between legal and illegal orders is seriously
ambiguous, and most of the training and ethics of the military emphasize obeying
orders, a small training unit on superior orders will not alter the overall message, even
if the rule is recast as Osiel suggests. Inviting front-line soldiers to police the
borderline cases misunderstands their pressures, capacities, and incentives.
If the problem is finding the courage to dissent and act on conscience, soldiers
will need direct and repeated training with detailed factual situations to cultivate the
conscience and motivation to dissent. Even then, unless the larger contexts of military
hierarchy and values are altered considerably, such training will have limited value.
Moreover, even avid debate among soldiers makes no difference if the nations law,
despite Osiels view, draws the line to include as lawful those orders that some find
violate their consciences. Anecdotal evidence suggests that the Israel Defense Force
(IDF) is characterized by more internal debate, less hierarchical relations, and more
dissent than the U.S. military forces.136 Even in the court martial process, the Israeli
government has allowed latitude to objectors, permitting not only legal but personal
and political arguments about service in the occupied territories. Nonetheless, the
courts have convicted all of the objectors, and construed manifestly illegal orders to
cover narrow ground.137
Osiel claims that by punishing obedience to unlawful orders, his proposed rule
would lead soldiers to engage in more debate among themselves about what is and
what is not lawful. This implication is not so obvious. The soldiers would have to risk
peer disapproval if they raised objections to orders; there is no assurance that debate
would reflect knowledge about legal standards or raise the level of actual moral
conduct. Such debate might produce more resistance to illegal orders but it might
equally generate more mutual reinforcement to follow orders. The most likely effect
of Osiels rule would be to discourage those giving the orders from doing so in
135 See Part III.A.2, above. His emphasis on cultivating the soldiers sense of honour and
commitment to his fellow soldiers also matches prevalent understandings of soldiers motivations. See
e.g. Wolfgang Royl, Military Pedagogy and the Concept of Leadership Development and Civic
Education in Edwin R. Micewski & Hubert Annen, eds., Military Ethics in Professional Military
EducationRevisited (Frankfurt am Main, F.R.G.: Peter Lang, 2005) 22 at 22, 24.
136 I base this in part on three focus groups I held with veterans of the IDF in spring 2006. My
informants suggested that universal service, a small, relatively homogeneous society, the presence of
highly educated individuals in each platoon, and the irreverence and informality of Israeli culture
contribute to an atmosphere of questioning and debate. None of my informants served in another
military, however, and thus each had limited basis for comparison.
137 See Hadar Aviram, Discourse of Disobedience: Law, Political Philosophy, and Trials of
Conscientious Objectors (UC Berkeley Public Law Research Paper No. 728743, 23 May 2005),
online: Social Science Research Network
39
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specific terms. Ratcheting up the attention to potentially illegal orders is likely to
generate fewer explicit superior orders whose legality is debatable. Commanders
would risk liability (which could also come with low rates of enforcement) under
command responsibility for the actions of the soldiers under command. Superiors
would then be likely to seek the deniability afforded by ambiguous or vague orders.
The significance of the legal treatment of the superior orders defence lies less in
its actual ability to deter atrocities than in terms of the expressive values of the law.138
Here, maintaining the message of individual responsibility, etched since the
Nuremberg Tribunal, conveys national and international will to curb military
atrocities but is even more directly a refusal to excuse atrocities or war itself as the
products of abstract forces or nations. Holding individuals responsible even if they
followed orders is a way to reaffirm that though neither killing unarmed civilians in
their homes139 nor prisoner abuse is genocide, both are blatantly wrong. Even if the
national laws fall short, the individual soldier must be held responsible for failing to
resist explicit or tacit orders that are morally wrong, including a command structure
that produces obviously unacceptable and harmful behaviour. That apparent lesson
from the Nuremberg trials is tested by current U.S. military conduct; this makes
revisiting the lesson all the more urgent.140 The expression of individual responsibility
in this setting helps to anchor the democratic ideals of participation and
accountability, individual autonomy, and freedom of expression. Historic resistance to
limiting the defence of superior orders141 is couched usually in concern for
maintaining military discipline. Those who want to maintain restrictions on the
superior orders defence should still seek to reinforce the individual responsibility that
attaches to soldiers for their own misconduct, quite apart from following illegal
orders.
To some degree, I am suggesting here something akin to the concept of acoustic
separation, developed by Professor Meir Dan-Cohen, in which the conduct rule aimed
to affect the behaviour of ordinary citizens has different content than the decisional
rule that seeks to guide decision makers like judges.142 For example, the conduct rule
138 See Robert Cooter, Expressive Law and Economics (1998) 27 J. Legal Stud. 585; Sara Sun
Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal
Enforcement? (2000) 80 B.U.L. Rev. 1227 at 1254-63; Lawrence Lessig, The Regulation of Social
Meaning (1995) 62 U. Chicago L. Rev. 943; Bernard E. Harcourt, After the Social Meaning Turn:
Implications for Research Design and Methods of Proof in Contemporary Criminal Law Policy
Analysis (2000) 34 Law & Socy Rev. 179.
139 Investigations of two recent incidents of such Marine conduct in Iraq communicate that the
United States still sets legal limits while engaged in Iraq. See Civilian Deaths Send Top Marine to
Iraq (25 May 2006), online: CNN.com
140 See note 22 and accompanying text (Marines charged with murdering Iraqi civilians).
141 See Part II, above.
142 See Dan-Cohen, Acoustic Separation, supra note 13. Dan-Cohens idea is actually part of a
larger project that emphasizes individual dignity and the socially constructed contexts of morality. See
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Ignorance of the law is no excuse has the desirable effect of encouraging people to
learn about the law, but decision makers might well operate under a different rule that
excuses ignorance of the law in some circumstances. Rather than making a distinction
between one rule to guide conduct and another to guide decision makers, I suggest
that we need a rule restricting superior orders as a defence for moral and expressive
purposes, but that serious efforts to constrain military abuses also require work at the
levels of military organization, staffing, and incentives.143
Expressive purposes should not be treated in this context as wholly apart from
instrumental effects. The very expressive dimensions of law may stimulate collective
investment in monitoring activities or the willingness of community members to
report offenceswith the effect of strengthening the norm at issue.
This is the finding of recent research on hate crimes legislation.144 This research
acknowledges that hate crimes legislation is often designed for symbolic reasons,
such as changing the social meaning of certain bias-motivated criminal acts in public
discourse. Identifying a law as symbolic tends to suggest that it does not have actual
effects, but this study suggests that although Californias hate crimes legislation
generated quite varied practices in different agencies and departments, those that
adopted policies of community engagement, such as watchdog groups or a human
rights commission, were associated with increased levels of hate crimes reporting.145
Symbolic legal acts can have measurable effects when connected with organizational
features enabling those effects. Similarly, restrictions on a superior orders defence, if
joined with activities, particularly training programs and organizational changes
devoted to preventing atrocities, could produce results.
B. Small Gains Through Training Programs
The prescription that follows military atrocities tends to be training. That is what
observers have demanded following the abuses of detainees in Abu Ghraib and
Guantnamo.146 Yet determining the appropriate mode and content of training is a
complicated task, as three experiences illustrate: the civilian massacre at My Lai, the
Israeli Black Flag incident, and a recent experience of U.S. troops in Iraq.
Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (Princeton, N.J.: Princeton
University Press, 2002).
143 Serious enforcement of command responsibility would offer one source of incentive. See Part I,
above.
144 See Valerie Jenness & Ryken Grattet, Beyond Symbolic v. Instrumental Law: Hate Crime
Policy and Law Enforcement Practice (21 January 2006) [unpublished], online: Center for
Organizational Research, University of California, Irvine
145 Ibid. at 32.
146 See e.g. Committee on International Human Rights and Committee on Military Affairs and
Justice, supra note 32 at 193-94. Except for soldiers in legal and military intelligence units, former
soldiers I consulted tend to remember the training in ethics and law as cursory and summary, often
taking place in a one-hour presentation.
41
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
The U.S. military overhauled its training programs after U.S. soldiers massacred
approximately five hundred unarmed civilians in My Lai and then sought to cover up
the event. Recent reports of military abuses prompt a return to the events leading up
to My Lai and its consequences for military training.147 An internal military
investigation confirmed war crimes only after persistent efforts to investigate by a
twenty-two-year-old ex-GI named Ronald Ridenhour; the investigation in turn
triggered the prosecution and conviction of Lieutenant William Calley.148
Calleys defence attorney argued unsuccessfully that it would be asking too much
to judge him by the standard of a person of ordinary sense and understanding and
that instead, given Calleys lower-than-average intelligence (as measured on
standardized tests), he should be assessed according to the standard of commonest
understanding.149 The U.S. Court of Military Appeals rejected that argument and
concluded that if Lieutenant Calley had been given an order to murder infants and
unarmed civilians, as he claimed, such an order would have been so palpably illegal
that whatever conceptional difference there may be between a person of commonest
understanding and a person of common understanding would be irrelevant.150
The courts marshal secured convictions of no one other than Calley, though the
military did pursue the matter internally. A report by Lieutenant General William
Peers cited as causes for the massacre the lack of leadership and proper training for
soldiers and superiors about the law of war. This report and related critiques produced
new teaching programs aimed at preventing and reporting violations.151 Initially, the
training programs emphasized that each soldier must learn to question orders.152
147 See Graham Rayman, 2 Wartime Incidents, 1 Lesson: A Vietnam Massacre Recalled in the
Light of Recent Haditha Killings Set a Tone for Militarys Response, Some Say Newsday (18 June
2006) A24. Recent events have also spurred renewed interest in the Vietnam era and unearthed
declassified evidence revealing 320 substantiated claims of war crimes and atrocities, not including
the My Lai massacre. See Nick Turse & Deborah Nelson, Vietnam Horrors: Darker Yet Los Angeles
Times (6 August 2006) A1.
148 See Douglas O. Linder, My Lai: An Account, online: Famous Trials, University of Missouri-
Kansas City School of Law
149 United States v. Calley, 48 C.M.R. 19 at 27 (U.S.C.M.A. 1973) [emphasis added].
150 Ibid. at 29.
151 See U.S., Department of Defense, DoD Law of War Program (DoD Directive 5100.77) (5
November 1974). This directive was reissued as U.S., Department of Defense, DoD Law of War
Program (DoD Directive 5100.77) (10 July 1979), then as U.S., Department of Defense, DoD Law of
War Program (DoD Directive 5100.77) (9 December 1998), and subsequently as U.S., Department of
Defense, DoD Law of War Program (DoD Directive 2311.01E) (9 May 2006), online: Washington
Headquarters Services
152 Some thought the initial reforms reflected an overreaction. Initially, the army used a training film
entitled The Geneva Conventions and the Soldier (U.S., Department of Army, Training Film 21-4228
(1972)). Referring to the film, W. Hays Parks, a member of the Judge Advocate General Corps (JAG
Corps) at the time, wrote, It was a well-produced movie, with professional actors, but it was a
bureaucratic overreaction to the My Lai massacre that had every soldier questioning every order
issued by his superiorin addition to portraying superiors in a less-than-flattering light. Needless to
say, the movie enjoyed a very short run as one commander after another ordered it removed from his
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Participants telling their own stories warned of peer pressure.153 Subsequently,
training programs teach about My Lai but tend to emphasize the importance of
leadership and respect for law,154 yet the conditions giving rise to the My Lai incident
persist. Brigadier Nigel Aylwin-Foster of the British Army, the second most senior
officer responsible for training Iraqi forces, has criticized the U.S. military for
institutional racism, moral righteousness, misplaced optimism, of being ill suited to
engage in counter-insurgency operations,155 and a stiflingly hierarchical outlook;156
his critiques portray a military largely the same as at the time of the My Lai atrocity.
Citing My Lai, U.S. military leaders act more promptly to investigate and
prosecute at least the abuses that come to public attention.157 Nonetheless, many
commentators have suggested that the military seems to have inadequately instructed
its members in the laws of war and in each individuals personal responsibility for
complying with them.158 Calley tends to be remembered more than helicopter pilot
Hugh Thompson, who witnessed the slaughter and struggled to halt it and to save
civilians lives.159 Military training programs face substantive and pedagogical
basejustifiably, in my opinion (A Few Tools in the Prosecution of War Crimes (1995) 149 Mil.
L. Rev. 73 at 79).
153 See Paula Bock, The Choices Made: Lessons from My Lai on Drawing the Line The Seattle
Times Pacific Northwest Sunday Magazine (10 March 2002), online: The Seattle Times
Colburn, the helicopter gunner).
154 Why Haditha Matters The Nation (19 June 2006) 4 (A generation of future US military
officers were taught the details of the My Lai massacre as a particular lesson: What makes war crimes
is criminal leadership). See also Geoffrey S. Corn, Haditha and My Lai: Lessons from the Law of
War, in which Corn, Professor at South Texas College of Law in Houston and a retired Lieutenant
Colonel from the Army JAG Corps, emphasizes that lessons from My Lai include the importance of
leadership and respect for the laws and logic of war (Jurist (2 June 2006), online: University of
Pittsburgh School of Law
155 Richard Norton-Taylor, My Lais Untaught Lessons Guardian Unlimited (2 June 2006),
online: Guardian Unlimited
156 Brig. Nigel Aylwin-Foster, Changing the Army for Counterinsurgency Operations (2005) 85:6
Military Review 2 at 5.
157 See Rayman, supra note 147 (quoting William Eckhardt, prosecutor of Lt. Calley).
158 See Robert S. Rivkin, A Duty to Disobey: The Forgotten Lessons of My Lai La Prensa San
Diego (2 May 2004), online: La Prensa San Diego
159 For Thompsons own accounts, see Douglas O. Linder, The Heroes of My Lai, online: Famous
Trials, University of Missouri-Kansas City School of Law
at My Lai (CNN television broadcast, 6 December 1998), online: CNN.com
the public and from Congress).
43
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
difficulties in addressing precisely how a soldier should reconcile the duty to obey
orders with the potential defence of illegal orders to justify disobedience.160
For the instruction to be meaningful and effective, it must involve more than one
hour of lecture. Soldiers need to drill through experiential learning so that they have
reflexes to reject abusive action just as they have reflexes to shoulder a weapon.
Some of this can come from immersion in hard case studies. Teaching case studies
provides an encounter with vivid factual descriptions, helps alert people to issues, and
helps cultivate the ability to recognize problems in practice. Major Mark Martins of
the Judge Advocate Generals Corps of the U.S. Army shows in detail that soldiers
cannot remember or use all the relevant abstract rules of war and instead need
schemas, or organized structures of patterned knowledge, repetitive practice, and
ongoing learning grounded in real stressful situations and real mistakes that real
soldiers have made.161 In tense situations of combat or anticipated violence, soldiers
will rightly fall back on repetitive training for particular operations, and such training
can include exposure to paradigmatic examples of orders that are manifestly illegal
and orders that are on the borderline but can be questioned. To be implemented by
soldiers, the laws of war and ethical limits must be drilled to the same degree that
training cultivates a sense of membership in a team, attachment to the virtues of
loyalty and honour, integration of physical, cognitive, and emotional learning, and
familiarity with ones weapon.
Repeated exposure to vivid examples and involvement in role-playing exercises
can structure effective drills that have lasting effects. In three informal focus
groups,162 veterans from the Israel Defense Force each recalled learning about the
Black Flag incident, even though most did not remember learning the laws of
war.163 The Black Flag incident at Kfar Kassem occurred at the onset of the 1956
160 When Hugh Thompson appeared in a training program held at the controversial School of the
Americas (preparing military action in South America), he received a standing ovation, and yet the
ensuing discussion never clarified how soldiers faced with commanders like Calley, Medina, and
Brooks could deal effectively with illegal orders; indeed, if one soldier had been moved to self-
mutilation to avoid complicity, a direct refusal to obey orders was probably out of the question and
perhaps even life threatening (Lesley Gill, The School of the Americas: Military Training and
Political Violence in the Americas (Durham, N.C.: Duke University Press, 2004) at 147-48).
161 Maj. Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not
Lawyering (1994) 143 Mil. L. Rev. 1 at 24, 71-76, 84-85.
162 In spring 2006, I conducted two sessions with individuals enrolled as graduate students and their
spouses who had served in the IDF, and I met with the Wexner Israel Fellows, a group of Israelis
including current members of the military and government. See Wexners Pledge Additional 6.3
Million to Center Harvard University Gazette (1 June 2006), online: Center for Public Leadership,
John F. Kennedy School of Government, Harvard University
governmental officials to the Kennedy School each year for a one-year masters degree).
163 The following discussion reflects collaboration with and suggestions from Amos Guiora,
professor and director of the Institute for Global Security Law and Policy, Case Western Reserve
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Sinai Campaign.164 Israeli authorities imposed a curfew to run from 5 p.m. to 6 a.m.
on Arab villages in Israel near the Jordanian border. At 3:30 p.m. a border patrol unit
was assigned the task of enforcing the curfew, which was set to begin before villagers
who were in the fields tilling the land were notified. During the preparatory briefing,
a member of the force asked what would happen to those returning from the fields
after the curfew was in effect. The commanding officer replied briefly, God have
mercy upon them. Subordinate officers translated this comment into a directive to
shoot anyone returning after the curfew. As a result, soldiers killed forty-seven men,
women, and children returning from the fields. In subsequent trials arising from the
incident, the Israeli courts concluded that an order to shoot curfew violators was
blatantly unlawful, and those who followed such an order were court-martialed and
given long sentences, although none ultimately served more than three and one-half
years.165
Even long after training and long after military service, veterans of the IDF
remember the Black Flag incident. In fact, its history is well known throughout the
country, where it is taught to children in civics classes. Indeed, several Israelis have
told me that they think basic training is too late a moment to teach soldiers how to
prevent atrocities. The instruction must start in childhood. Because universal military
service is a feature of Israeli society, their schools and their youth groups do teach
about this subject to teens and even younger children. But interestingly, because
theirs is not a volunteer but a mandatory-service military, the commanders have to
win the confidence and respect of the soldiers especially around issues of ethics. The
civilian population is in touch with, and participates in, discussions about acceptable
conduct. And because their Supreme Court has provided repeated and high-profile
rulings about what is and what is not acceptable conduct by the military,166 there may
School of Law, and Lt. Col. (retired), Israel Defense Force. See Interview of Amos Guiora by Martha
Minow (March 2006) on file with author.
164 The phrase black flag was used vividly in a court opinion discussing manifestly illegal orders:
The distinguishing mark of a manifestly unlawful order should fly like a black
flag … Not formal unlawfulness, hidden or half-hidden, nor unlawfulness discernible
only by the eyes of legal experts, is important here, but … unlawfulness piercing the eye
and revolting the heart, be the eye not blind nor the heart stony and corruptthat is the
measure of manifest unlawfulness required to release a soldier from the duty of
obedience (Chief Military Prosecutor v. Melinki (1958), 13 Pesakim Mehoziim 90,
cited in Israel (A.G.) v. Adolf Eichmann (1961), 36 I.L.R. 18 at 256 (Israel, District
Court of Jerusalem)).
165 See Kfar Kassem 1956, online: Palestine Facts
Arbor: University of Michigan Press, 2004) at 169-70, 310-24; Shira Robinson, Local Struggle,
National Struggle: Palestinian Responses to the Kafr Qasim Massacre and Its Aftermath, 1956-66
(2003) 35 International Journal of Middle East Studies 393. These sources show that there is some
disagreement as to the exact number of civilians killed.
166 See e.g. Public Committee against Torture in Israel v. Israel, 2005 HCJ 769/02 (Isr.); Public
Committee against Torture in Israel v. Israel, 1999 HCJ 5100/94 (Isr.).
45
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
be a basis for the report by some military veterans that they operated with a constant
sense that higher authorities are looking over their shoulders.167
The IDF has not solved the dilemma of obedience to superior orders, nor is it
blameless when it comes to human rights standards. But the strong impact of the
Black Flag case suggests that vivid scenarios can have an enduring hold. That said,
given the light sanctions actually enforced in the incident itself, it is frankly not so
clear what lessons soldiers actually learn.168 Soldiers should learn from the incident
that they should never assume that an ambiguous order means that they should kill
civilians or engage in any other conduct that on its face looks illegal. They should
know that in such an instance, they can question superiors without being viewed as
insubordinate, and they should know that court martial or other sanctions follow from
blindly following orders that are clearly illegal.
Pushing in the opposite direction is the emphasis some place on training soldiers
to follow directions precisely to ensure that they do not give in to their own impulses
to violate the laws of war. Lieutenant Colonel Patrick Gawkins of the U.S. Army
described to me an incident in which his convoy entered an area in Iraq where
intelligence had alerted them to likely violence from insurgent forces.169 Indeed, the
caravan was hit by some kind of exploding material from the side of the road,
wounding several individuals, including Gawkins, and shattering the windshield of
his armoured vehicle. Gawkins told me that as he tended to his own wounds, he saw
one of the soldiers in his car train his weapon on a man standing at the side of the
road. The man appeared to be a shepherd; he stood with a young boy and several
sheep, and he was talking into a cellphone. The soldier was ready to shoot, but his
commanding officer told him to put down the weapon while keeping an eye on the
man, and the soldier complied. Gawkins indicated it was a reasonable guess that the
man was involved in triggering the explosion, but he also could have been simply an
innocent civilian. When I asked why the soldier so readily put down the weapon,
Gawkins explained that this was the result of rigorous training that had prepared him
to follow commands under pressure. When I pressed further, Gawkins also explained
that the training in his unit included rules against using dehumanizing or degrading
names for the Iraqis or for Muslims, and he suspected that this further contributed to
the soldiers ability to hear and accept the officers direction to lower his weapon.
Here, then, is the dilemma that reliance on training presents in dealing with
superior orders and the dangers of military atrocities. Swift obedience to orders may
be crucial to avoid atrocities just as questioning and refusal to conform may at other
times be important. It is not clear whether the primary educational goal should be to
drill answers or instill a questioning stance. Either is problematic in this context.
Gawkins suggested that the tension can be mitigated to some extent in the process by
167 It remains uncertain whether this will change with the end of Chief Justice Aharon Baraks
service on the Israel Supreme Court.
168 I would like to thank Professor Pnina Lahav for emphasizing this point.
169 Interview of Lt. Col. Patrick Gawkins, supra note 41.
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which the unit relays orders. The superior gives the order and the junior officer who
receives it should repeat it and ask any clarifying questions about it. But in Gawkins
account, that routine does not include questioning the substance of the order.170
The content of the training is ultimately less important than the importance given
to it by daily command structure and military culture. Training that emphasizes the
legal and moral duties attaching to each soldier, including adherence to the laws of
war, may be helpful, but only if the officers reinforce that message and subscribe to
the same legal and moral duties. Then, it will not be the training alone that matters,
but also the message throughout the organization, and especially from the top, about
the significance of those duties and about the equal priority of legal and ethical
training as compared to training in weapons and intelligence. Competence in
handling weapons does not imply moral competence: Officers and soldiers not
morally competent are not militarily competent.171 Absent inspiration to pursue
honour and allegiance to the standards of morality exemplified by the leaders,
soldiers may bring disgrace.
Demonstrating and communicating the interdependencies of moral and legal
duties with all other dimensions of military preparedness would be crucial for gaining
requisite credibility with soldiers and officers alike. Amos Guiora, who ran training
programs in the IDF before setting up the Institute for Global Security at Case
Western Reserve Law School, found it possible to win the support of officers for
rigorous ethics instruction precisely by connecting it with combat preparation:
Commanders buy into training about moral and legal duties because they
believe that operating well in armed conflict calls for training their soldiers on
issues of morality and that is just as important as issues of intelligence, and
weapons. Discipline in the field around these issues is crucial because if the
soldiers are not prepared on this, it is just as bad as if they are not prepared in
intelligence, how to shoot a gun, [or] medics. An ill-disciplined unit lacking
compliance with the codes will perform less well operationally, make mistakes
in the field, and often be a failure. So teaching this is just as important as
teaching operations, intelligence, and weapons.172
Training in the legality of tactics has to be early and constant. It is too late to think it
through when the crisis happens.
170 Gawkins also indicated that the U.S. Army has used surveys to assess the atmosphere of units
especially around issues of ethnic and racial harassment. Soldiers are asked about their comfort level
in the unit and this contributes to a grade given to the commanding officer. In this context, another
atmospheric feature that could be assessed is how comfortable soldiers feel to raise questionsbut
even that question, and the value behind it, would require a notable change in how to value questions
in comparison with obedience. See Interview, ibid.
171 Toner, supra note 7 at 43.
172 Interview of Amos Guiora by Martha Minow, supra note 163. See also Amos Guiora & Martha
Minow, National Objectives in the Hands of Junior Leaders: IDF Experiences in Combating Terror
in James J.F. Forest, ed., Countering Terrorism in the 21st Century (Westport, Conn.: Praeger Security
International, 2007).
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
Selecting who teaches the material on law and ethics may make the difference
between effective and ineffective instruction. Lawyers who are remote from the
platoon do not make as effective instructors as officers who have earned the respect
of their troops. Especially if the instructors are viewed as outsiders, naive, or remote
from the real demands of the military, their message will not reach the solders.173
47
C. Aligning Commands with Law and Morality
If we are serious about wanting to enable individual soldiers to resist peer
pressure, the burden cannot be placed solely on the individuals. The concern must
also infuse soldiers training and incentives, the command structure, and the stance
taken by superior officers if atrocities during wartime are ever to be prevented.174 The
authorization for massacres, abuse, and dehumanization of those victimized may
come from military and civilian leaders, but these forces cannot produce atrocities
unless front-line soldiers and their immediate commanders commit them instead of
asserting their own moral judgments and actions. High authorities tend to blame
soldiers participating in abuses as errant bad apples, but bad orders, environment,
culture, command and organizational structure, and relationships between operations
and legal analysis are also implicated. Work addressing the individuals knowledge
and incentives, the organizations structure and practices, and the processes of
accountability must proceed in a coordinated fashion if atrocities are to be prevented
or reduced.
1. Try to Eliminate Bad Orders
The most direct way to avoid the problem of soldiers following illegal orders is to
ensure that they do not receive any. Recent developments expose at least two
difficulties with this direct solution. First, debate within the executive branch and
responses by the U.S. Supreme Court and Congress over the lawfulness of detention
practices has strained the ability of anyone in the military to know for certain the line
of illegality. Following 9/11, memoranda written for the U.S. president contended that
offshore detainees lacked protections under domestic and international law and
lacked access to U.S. courts to challenge their detention or conditions.175 Another
memorandum construed the U.S. ban against torture to encompass only suffering
equivalent to the pain that would be associated with serious physical injury so severe
that death, organ failure, or permanent damage resulting in a loss of significant body
function will likely result.176 On these bases, Guantnamo interrogators received
173 See Interview, ibid.
174 Entirely understandable is the reaction of the guard at Abu Ghraib who saw conduct he thought
immoral but who assumed that someone would have said something if relevant guidelines were not
being followed. See supra note 40.
175 See Yoo Memorandum, supra note 27.
176 Bybee Memorandum, supra note 70 at 13. Accord U.S., Department of Defense, Working Group
Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical,
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authorization to use certain counter-resistance techniques, including sensory
deprivation, hooding, playing on phobias, and stress positions,177 and some of these
techniques migrated to the prison at Abu Ghraib. Subsequently, the U.S. Supreme
Court set some limits on the detention policies, opening access to judicial review,178
and Congress enacted a law re-establishing the U.S. commitment to refrain from cruel
or inhumane treatment of detainees, but also passed a law drastically limiting access
to judicial review.179 Against this high-level dispute, sorting out good and bad orders
would be nearly impossible for ordinary soldiers, especially considering that military
lawyers advised against the direction pursued by the White House.180
A second difficulty in preventing bad orders is the shift from explicit to implicit
or vague orders. Such a shift is a likely effect of learning legal rules. Certainly no
commanding officer would give as the order, Commit genocide. What precisely
should a solider know to be unlawful? When does a less explicit order amount to a
command to commit genocide? A soldier would have to know genocides legal
elements, including the element of intention, in order to recognize that particular
directives adding up over time might constitute genocide, crimes against humanity, or
other violations of legal norms. When, and how, should a soldier think for himself or
herself about the ultimate or aggregate meaning of vague orders? Officers breaching
the borders of legality in their orders will most likely not give a directive that
explicitly states, Deprive this person of treatment required under international law,
or Use torture on this detainee. The commander may well instead say, Keep this
detainee quiet, or Make this detainee aware we mean business, or Make sure
there is no local person aware of our approach toward the village. The soldier may
not even be aware that a potentially illegal order is at hand: it may be the soldiers
interpretation of a vague or euphemistic order that leads to crossing the line to
illegality.181 Here, as elsewhere, perceiving a moral problem can be as crucial as
Policy, and Operational Considerations (4 April 2003), online: The National Security Archive
177 Haynes Memorandum, supra note 30.
178 See Hamdan v. Rumsfeld, supra note 33; Rasul, supra note 28; Hamdi, supra note 28.
179 See National Defense Authorization Act for Fiscal Year 2006, supra note 32, 1403. The
skirmish over cruel or inhumane treatment standards continued with the presidential signing statement
announcing the Executives intention to interpret the law. See Signing Statement, supra note 32.
Congress also enacted the Military Commissions Act of 2006, which forecloses access to court for
detainees named as enemy combatants or awaiting determination regarding enemy combatant status
(Pub. L. No. 109-366, 7, 120 Stat. 2600 at 2636).
180 See note 36 and accompanying text (discussing Albert Mora).
181 No written orders were issued before the My Lai massacreand the prevalence of vague orders
containing ambiguities transmitted down the chain of subordinates is well known. See Kelman &
Hamilton, supra note 94 at 2. As military operations develop in urban settings, in occupations, and in
stealth operations, actual orders are less common than general purpose directions, and discretion in
selecting tactics is exercised by platoon leaders or their equivalents close to the ground. See Part
IV.C.3, below.
49
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
working up the courage to act upon it.182 But to achieve the goal of preventing
violations of international and domestic norms, officers must neither give illegal
orders nor give the impression that they condone or permit abusive conduct.
Consider the ways that commanding officers can convey approval or expectation
of abusive or atrocious behaviour: The officer may simply say, Get the detainees
ready for interrogation, but mean, Abuse and humiliate them. Or he may say,
Clear the area but convey, instead, Kill the people who are there.183 Conveyed as
a hint, such comments may be interpreted as a powerful directive, especially when
communicated by an officer to a young soldier who has been primed to follow his or
her superior.
2. Promote a Constraining and Aspirational Culture
The absence of explicit orders may occasionally result from clever officers
seeking to avoid consequences, doubt, or even dispute among officers about what the
law permits. Yet it is more likely to reflect either failure to establish a culture of
honour and morality, or changes in military methods that include reducing strict
hierarchy and decentralizing decision making. For vague orders to be construed as
direct orders to commit abuses, members of the unit must not believe that their
superiors or their peers care about violations of law and morality. The pressures and
temptations of armed conflict make such violations always a risk, so failure to
establish a constrainingand aspirationalculture increases the likelihood of
atrocities. Hence, blind obedience to noxious commands may be less dangerous than
ordinary soldiers filling in the blanks with poor judgment or anxiety-triggered
viciousness. It is not entirely fair to characterize events at My Lai or Abu Ghraib as
the results of bad apples if the environment and military organization fail to provide
the cultural norms and direct supervision needed to prevent violations.
3. Address Command and Organizational Structure
Current military practice, when compared with nineteenth- and mid-twentieth-
century norms, operates less through strict hierarchy and more through decentralized
and team-based decision making. Soldiers may proceed without explicit hierarchical
orders when they work in teams responding to an immediate problem. In fact, modern
military procedures tend to replace strict hierarchical command with independent,
small groups that have better knowledge of local situations than do distant
commanders, and that control complex weapons, communications, and other
182 See Lawrence A. Blum, Moral Perception and Particularity (New York: Cambridge University
Press, 1994) at 41-45, 124-43.
183 See Osiel, supra note 131 at 305-309.
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technologies.184 Current analysis prefers military organizations that allow for
maximum flexibility so that each unit in the hierarchy can arrange its tactical
operations to meet the overarching goal identified in the stated mission.185 Platoon
leaders and their teams receive general objectives, integrated with rules of
engagement that incorporate domestic and international law.186 Soldiers in turn are
trained and rehearse tasks in accordance with their specific rules of engagement.187
It may seem logical that an increasingly flat organizational structure eases the
dilemma of the superior orders defence. With greater collaboration and less rigidly
hierarchical discipline, the problem of blind obedience to illegal orders would appear
to diminish. But in many ways, this development exacerbates the dilemma and the
risk of abusive conduct. True, a soldier may be confronted less often with the choice
to either obey a direct and explicit order to commit a war crime or else face personal
jeopardy from a commanding officer. But general directions to a team demand
individual discretion. As a participant in an urban operation in an occupied territory,
under a general direction to clear the area or secure the street, each soldier risks
becoming involved in harming civilians in violation of the laws of war. As a member
of the team in charge of detainees, each soldier is in danger of both falling under the
sway of peer pressure and of acting without sensible guidance. Therefore,
contemporary command structure requires that each soldier be taught to maintain
attention to the laws of war while operating amid decentralized command and tacit
ordersand while acting under stressful and emergency conditions.
4.
Integrate Legal Analysis into Platoon Command
Still, it cannot be left to the individual soldier to know the laws of war and apply
them to particular operations. Instead, legal analysis must be incorporated at each
stage of command and therefore with the support and participation of the command
structure. This may seem unrealistic to outsiders, but in fact (and this is one lasting
consequence of the My Lai massacre), lawyers have become much more directly
involved in planning U.S. military operations. Lawyers review and often draft the
184 See Keijzer, supra note 50 at 43-48; Osiel, ibid. at 214-21, 233-34; Martins, supra note 161;
Hermann Jung, Preparing for AsymmetryJoint Visions 2010 and 2020An Organizational
Learning Perspective in Micewski & Annen, supra note 135, 179 at 190-92.
185 See U.S., Department of the Navy, Marine Corps, Warfighting (MCDP 1) at 77-78 (1997),
online: Defense Technical Information Center
186 See U.S., Department of the Army, Legal Support to Operations (FM 27-100), ss. 8.2, 8.3 (1
March 2000), online: United States Army Training Support Center
(field manual on the mission and methods of the judge advocates and supporting legal personnel
detailing how rules of engagement implement strategic policy decisions, serving operational or
tactical military goals while bringing U.S. forces in compliance with domestic and international law).
187 Ibid., s. 8.4.4.
51
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
Rules of Engagement.188 They shape and participate in training programs whose
credibility is enhanced precisely due to their involvement. Discussion about the
legality or justifiability of conduct is now threaded throughout U.S. military training
and the planning of operations.189 Integrated attention to the legality of orders is a
central part of the training program used by the U.S. Marine Corps, which embraces
the goal of ensuring compliance with the spirit as well as the letter of the law.190
Providing access to legal advisors during planning and execution of operations is now
a priority in many parts of the U.S. military.191 Training materials increasingly look
like law school materials, relying on detailed scenarios to hone the situational
judgment of soldiers.192
Through these means, the law can become a tool for analysis and critical thinking
rather than a set of commandments. As one commentator explains, the lawyer serving
as a judge advocate is supposed to give detailed advice and ensure that if the
commander breaks the law, he is doing it intentionally.193 Thoughtful figures within
and outside the military argue for integrating law into the fabric of daily operations.
Some identify how lawfare, as a tool for winning and keeping hearts and minds,
can deeply affect the perception of the military by its own nation and by its
enemies.194 The White House circumvented the process of involving military lawyers
in the planning and assessments of interrogation and detention practices between 9/11
and when the abuses at Abu Ghraib and Guantnamo were exposed.195 Unlike White
House and Department of Justice lawyers, who in general lacked experience with the
188 See Maj. Derek I. Grimes, Maj. John Rawcliffe & Capt. Jeannine Smith, eds., Operational Law
Handbook (Charlottesville, Va.: International and Operational Law Department, The Judge Advocate
Generals Legal Center School, 2006) at 93ff., online: Air University, Maxwell-Gunter Air Force Base
the Advice of Counsel: The Role of Operational Law in the Gulf War (1996-1997) 7 U.S. Air Force
Academy Journal of Legal Studies 131 at 136, 140-42.
189 See Myrow, ibid. at 141.
190 U.S., Department of Defense, Marine Corps Order 3300.4, s. 1(a)(1) (20 October 2003), online:
U.S. Marine Corps
191 See e.g. ibid., s. 1(a)(3); Myrow, supra note 188.
192 See Martins, supra note 161; Myrow, ibid. at 137-39, 142. See generally Grimes, Rawcliffe &
Smith, supra note 188 at 3.
193 Myrow, ibid. at 144. See also Legal Support to Operations, supra note 186.
194 See Council on Foreign Relations, Lawfare, the Latest in Asymmetries (summary of meeting
held as part of Roundtable on National Security: Military Strategy & Options, 18 March 2003),
online: Council on Foreign Relations
strategy of using or misusing law as a substitute for traditional military means to achieve military
objectives); Jeremy Rabkin, Lawfare The Wall Street Journal (17 July 2004) A14 (arguing that
law can be used cynically to gain a military advantage, but a militarys failure to comport with law
gives a lever to opponents both practically, as when a court deals a blow to the militarys tactics, and
in the court of public opinion). For cautions against counting on legal vocabulary and rules to
strengthen personal responsibility for soldiers and leaders, see David Kennedy, Of War and Law
(Princeton, N.J.: Princeton University Press, 2006) at 12, 125-28, 142, 163-70.
195 See Kantwill & Watts, supra note 44 at 730-40.
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laws of war and knowledge of the practices of the military, the military Judge
Advocate Generals Corps lawyers who consulted on the issues integrated the spirit of
international law into their recommendations for treatment of al Qaeda and Taliban
suspects.196
Weaving law into strategy and tactics, rules of engagement, and training is an
example of the organizational approach that involves the ordinary soldier but does not
place the burden of lawfulness on his or her solitary shoulders. Especially where the
scope of legality is contested or ambiguous, it is unreasonable, indeed far-fetched, to
expect every soldier to monitor and take full responsibility for understanding debates
over the legality of orders as part of his or her daily job. The rank-and-file soldier
does not usually have access to lawyers for opinions and advice.197 More than the
front-line soldier, officers must carry responsibility for assessing the legality of
directives, and yet generals and other high-ranking officers are generally too removed
from the action to make the judgments that integrate law into what the soldier must
actually do. Hence, the platoon leader, closest to the ordinary solider, should carry
special responsibility for knowing and applying the law of war in assessing
commands from above and framing directives for action. The army field manual that
serves as foundational text of army leadership for every officer includes these
provisions that are especially well-suited to the platoon leader:
4-74. Under normal circumstances, a leader executes a superior leaders
decision with energy and enthusiasm. The only exception would be illegal
orders, which a leader has a duty to disobey. If a Soldier perceives that an order
is illegal, that Soldier should be sure the details of the order and its original
intent are fully understood. The Soldier should seek immediate clarification
from the person who gave it before proceeding.
4-75. If the question is more complex, seek legal counsel. If it requires an
immediate decision, as may happen in the heat of combat, make the best
judgment possible based on the Army Values, personal experience, critical
thinking, and previous study and reflection. There is a risk when a leader
disobeys what may be an illegal order, and it may be the most difficult decision
that Soldier ever makes. Nonetheless, that is what competent, confident, and
ethical leaders should do.198
196 See ibid. at 740-41.
197 With modern technology such as cellphones and text messaging, this would not be an
impossibility; determining who has access to military lawyers is now a military choice that itself
should be relevant in assigning responsibility for compliance with the law.
198 U.S., Department of the Army, Army Leadership: Competent, Confident, and Agile (FM 6-22)
(October 2006), online: United States Army Training Support Center
How Ethics is Taught in the U.S. Army War College in Micewski & Annen, supra note 135, 152 at
157; Richard A. Gabriel, Legitimate Avenues of Military Protest in a Democratic Society in Military
Ethics: Reflections on Principlesthe Profession of Arms, Military Leadership, Ethical Practices,
War and Morality, Educating the Citizen-Soldier (Washington, D.C.: National Defense University
Press, 1987) 101 at 104-10 (morally permissible avenues for military officers to protest orders include
2007] M. MINOW THE DILEMMA OF THE SUPERIOR ORDERS DEFENCE
With increasingly more discretion and tactical decision making at the platoon level,
the platoon leader should be the focus of training and responsibility for ensuring the
lawfulness of orders,199 including both orders coming from above and the platoon
leaders own orders. Indeed, in some circumstances, perhaps the platoon leader
should be given the specific job of playing devils advocate in order to reduce the
groupthink and conformity surrounding a superior officer.200
53
5. Allocate Resources for Translation and Consultation
Sensible allocation of resources to prevent abuses is the kind of detail that, once
again, the lowest-level soldier cannot accomplish. A member of the IDF Judge
Advocate Corps described the instance of an eighteen-year-old guard serving at a
checkpoint between two parts of the territories (not between Israel proper and a
territory).201 One order from high authority directed that no person could pass through
the checkpoint with food or drink without taking a bite or a sip in front of the guard in
order to demonstrate that the substance was not a biological weapon or other danger.
A Palestinian woman carrying a container filled with a clear liquid came to the
checkpoint. The guard directed her to take a sip. The guard did not speak Arabic and
apparently the Palestinian did not understand Hebrew. The guard, frustrated, repeated
the direction and finally pointed her gun at the Palestinian, and motioned that she
should drink the liquid, which she did. The guard passed her through the checkpoint
only to hear her collapse in convulsions shortly thereafter. As it turned out, the liquid
was machine oil that the woman was bringing to her husband so he could clean his
engine.
Here the order under which the guard operated was not itself illegal, and certainly
not manifestly so, but her implementation of it was thoughtless and inflicted genuine
harm. She faced disciplinary sanctions. The individual soldier should indeed be
induced to think more carefully than this soldier did. But so should resources be
arranged so that a soldier in such a situation would have someone to turn to for
translation given the predictable communication problem at a checkpoint, or at least
someone to consult about what to do in the face of such a problem. This mess would
resignation, request for relief in protest, appeals to a higher command, and refusal, with potential
defence at a court martial). By addressing officers rather than rank-and-file soldiers, such guidelines
indicate how the question of disobedience affects the duties and capacities of officers differently than
other soldiers.
199 See Guiora & Minow, supra note 172. The omission of the topic of serious ethic abuses in
training materials for junior officers is striking, given their pivotal role in implementing commands
and setting the right tone. See e.g. Karel Montor et al., eds., Ethics for the Junior Officer: Selected
Cases from Current Military Experience, 2d ed. (Annapolis, Md.: Naval Institute Press, 2001).
200 This might begin to approximate the variations on Aschs experiments in which the presence of
dissenters reduced the likelihood that a subject would suppress his own perceptions and conform with
the group. See supra note 123.
201 Interview of Oded Savoray, Judge Advocate, Israel Defense Force by Martha Minow (17 May
2006) on file with author.
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not be avoided if the soldier was perfectly trained to resist a manifestly illegal
command nor if she had memorized the Geneva Conventions. Teaching alone will be
insufficient; there must be related changes in the organization, management, rewards,
and punishments of military operations in order to guard against abuses and atrocities.
The integration of law into day-to-day operations requires recasting law from a set of
rules legislating norms to ongoing practices of reflection and interrogation of action
and operations.
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Conclusion
When should a soldier be held responsible for following orders? Pursuing this
question illustrates how complicated the very statement of an important rule can be,
how instruction in a rule may not sufficiently affect conduct, especially conduct in
stressful situations, and how ethical thinking requires individual courage but also
reinforcement through a larger strategy to design and maintain the organization,
management, rewards, and punishments of day-to-day operations. If only to express
the symbolic importance of individual accountability central to democratic ideals, the
law should permit no defence to charges of genocide, crimes against humanity, or
violations of the law of war on the basis of following orders. Yet social science
research predicts that soldiers will in fact follow orders, whether legal or illegal, and
that soldiers will conform to expectations of superiors and peers. Soldiers will not
only be unlikely to resist a commander or peer group authorizing or engaging in
atrocities but will also be prompted to join in with abusive behaviour started by peers
or prodded by superiors. Reducing the risk of military atrocity requires the direct
engagement of the entire military, civilian authorities, and citizens in designing the
organization, the norms, and a culture that demand lawful and ethical conduct.
Otherwise, atrocities will recurand we will all be responsible.
