This article addresses the content and ramifications of the unique plea of superior orders, illustrating the complexities of absolving wartime behaviour on this basis as well as the legitimate rationale for doing so in certain cases. The article discusses the general legal obligation for soldiers to obey commands; outlines the historical development and legal content of the corresponding plea of superior orders, including its incorporation into the Rome Statute of the International Criminal Court (ICC); and assesses the potential future application by the ICC of this specialized “mistake of law” doctrine. The author argues that in light of its moral and practical ramifications it should be considered by the court as both a full defence and a factor in mitigation of sentence, in a manner conceptually distinct from duress. However, the author cautions that the ICC must be careful to encourage, rather than discourage, individual moral autonomy, to the extent possible. A full defence should remain open to soldiers only when they have acted under a reasonable albeit mistaken belief in the legality of their orders. Especially on the modern battlefield, soldiers must continue to act and be judged as “reasoning agents” and not as mere automatons.
1 This article focuses on the plea of superior orders as it relates to national military hierarchies. However, while this doctrine has historically been addressed in this context, as a matter of contemporary international law, the invocation of superior orders is not confined to military personnel. This plea is available to any defendant under a legal obligation to obey the commands of a superior, whether military or civilian. See, eg, Rome Statute of the International Criminal Court, 17 June 1998, 2187 UNTS 90, 37 ILM 1002 (entered into force 1 July 2002), art 33 [Rome Statute] (“[s]uperior orders and prescription of law”). The term “soldiers” is used in a generic sense to refer to all military personnel, whether members of an army, navy, air force, or other national military service.
3 See, eg, discussion of related issues in Dinstein, Yoram, The Defence of “Obedience to Superior Orders” in International Law (Leyden, Netherlands: AW Sijthoff, 1965)
4 R v Finta,  1 SCR 701 at 828, 112 DLR (4th) 513 (Cory J., speaking for the majority; Gonthier and Major JJ., Lamer C.J.C. concurring) [Finta, cited to SCR].
6 National Defence Act, RSC 1985, c N-5, s 83 [NDA].
7 Eg, reiterations of this obligation are found in the following sections of the NDA: s 74(c), failing to use “utmost exertion” to carry out orders relating to operations ofwar in the presence of the enemy; s 76 (a), being made a prisoner ofwar through, inter alia, disobedience of orders; s 106(1), disobedience of captain’s orders when in a ship; and s 110(1), disobedience of captain’s orders when in an aircraft.
8 See, eg, the review of national legislation and military practice in Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), volume a, Practice, at 3800–14.
9 The NDA also provides for a maximum life sentence of imprisonment for all of the related offences detailed earlier. The death penalty no longer applies to any military offences in Canada following its revocation from the NDA in 1998. An Act to Amend the National Defence Act and to Make Consequential Amendments to Other Acts, SC 1998, c 35. For civilian criminal offences, the death penalty was abolished over twenty years earlier, with the passage of Bill C-84 in 1976. This dichotomy illustrates the differences between conceptions of appropriate criminal sanctions for soldiers versus civilians. Soldiers are subject to separate and often more severe punishments for the same acts by virtue of the need to maintain discipline in, and the operational effectiveness of, military forces.
10 Eg, the Uniform Code of Military Justice, 10 USC § 890 at art 90(a), in the United States provides that “[a]ny person subject to this chapter who wilfully disobeys a lawful command of his superior commissioned officer shall be punished, if the offense is committed in time of war, by death or other such punishment as a courtmartial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.”
11 For instance, this limitation is enunciated in the NDA, supra note 6, s 83 (requiring obedience to “lawful” orders). It is reiterated in art 19.015 of the Queen’s Regulations and Orders for the Canadian Forces [Queen’s Regulations and Orders], enacted pursuant to the NDA, s 12. The official version of the Queen’s Regulations and Order’s is published electronically. See National Defence and the Canadian Forces: Queen’s Regulations and Orders, online: <http://www.admfincs.forces.gc.ca/qro-orf/index-english.asp>. See also Henckaerts and Doswald-Beck (practice), supra note 8.
12 In re Ohlendorf and Others (Einsatzgruppen Trial), Judgment 217 (10 April 1948) (United States Military Tribunal (USMT), Nuremberg), 15 ILR 656 at 665 [Einsatzgruppen case]. Two years earlier, the International Military Tribunal had rejected the “mythical requirement of soldierly obedience at all costs” in the trial of Alfred Jodl. In re Goering and Others, Judgment (30 September - 1 October 1946) (International Military Tribunal (IMT), Nuremberg), reproduced in 22 Trial of the Major War Criminah before the International Military Tribunal 411 at 571 [IMT Judgment].
13 See, eg, related discussion in Finta, supra note 4 at 838.
14 Queen’s Regulations and Orders, supra note 11, art 19.015, n(B). This obligation is reiterated in Canada, National Defence: Office of the Judge Advocate General, Code of Conduct for Canadian Forces (CF) Personnel, Doc B-GG-005-027/AF-023, online: National Defence and the Canadian Forces: Office of the Judge Avocate General: Operational Law <http://www.forces.gc.ca/jag/publications/Training-formation/CFCC-CCFC-eng.pdf> [CF Code of Conduct]. As LC Green notes, however, these provisions are silent with respect to the ramifications if a soldier complies with an order in such circumstances “and it transpires that it was in fact illegal.” Green, LC, “Superior Orders and the Reasonable Man,” in Green, LC, ed, Essays on the Modern Law of War, and edition (Ardsley, NY: Transnational, 1999) 245 at 248.
15 See, eg, Osiel, Mark J, Obeying Orders: Atrocity, Military Discipline and the Law of War (New Brunswick, NJ: Transaction, 1999) at 54–55 ; Paust, Jordan J, “Superior Orders and Command Responsibility,” in Bassiouni, M Cherif, ed, International Criminal Law, and edition (Ardsley, NY: Transnational, 1999) volume 1, Crimes, 223 at 224–25. See also Henckaerts and Doswald-Beck (practice), supra note 8.
16 See, eg, Osiel, supra note 15. Osiel focuses, in particular, on providing greater autonomy to officers and more senior non-commissioned members of armed forces (see, eg, at 8). This may be particularly relevant for peace enforcement operations fought by Western democracies where military disobedience does not pose an obvious threat to state stability and the armed forces in question are generally well trained and educated (see, eg, at 269–70).
17 As a result, while the conclusions of this article generally complement those offered by Osiel, supra note 15, they focus on how the ICC should address the plea of superior orders in light of the current obligations of obedience owed by soldiers.
18 For a more detailed overview of the historical evolution and content of the plea of superior orders, see, eg, Dinstein, supra note 3; Green, LC, Superior Orders in National and International Law (Leyden, The Netherlands: AW Sijthoff, 1976). For a more recent overview of this plea, see, eg, Green, “Superior Orders and the Reasonable Man,” supra note 14; Lippman, Matthew R, “Humanitarian Law: The Development and Scope of the Superior Orders Defense” (2001) 20 Penn St Int’l L Rev 153 . See also Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), volume 1, Rules, at 563–67.
19 Art 8 of the Charter of the Military Tribunal at Nuremberg, annexed to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279, 59 Stat. 1544, expressly prohibits the invocation of superior orders as a defence: “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.” Allied Control Council of Germany, Allied Control Council Law no 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity (20 December 1945), 3 Official Gazette Control Council for Germany 50–55 (1946), art II(4)(b) [Control Council Law no 10], which establishes a similar limitation for national war crimes trials conducted by the Allied powers. See also, eg, In re Von Leeb and Others (German High Command Trial), Judgment 119 (28 October 1948) (USMT, Nuremberg), 15 ILR 376 [High Command case] (discussing the nature of Hitler’s authority in Nazi Germany as the rationale for the Allied denial of superior orders as a full defence). As early as 1943, the scholar Edwin Dickinson noted that a failure to limit this defence would mean that the “only war criminals available for punishment … [would be] Hitler and Tojo, neither of whom is likely to be available alive when the victory is finally won.” Charles Cheney Hyde, “Punishment of War Criminals” (1943) 37 Am Soc Int’l L Proc 39 at 49 (comment from Edwin Dickinson); see also Dinstein, supra note 3 at 144–47. In Finta, supra note 4 at 840, Cory J. even suggested that an unqualified defence of superior orders might have applied to Hitler himself (arguably misunderstanding the Fuhrer principle as it applied to the domestic law of Germany, as described, eg, in Dinstein, supra note 3 at 140–43). Restriction of the plea of superior orders was less absolute in the context of post-war trials conducted in the Far East, where it was not sufficient “of itself” to establish a defence. See, eg, discussion in Dinstein (at 156–59).
20 This judicial practice is discussed in greater detail later in this article. In addition, these tribunals were arguably intended to address conduct already considered to be manifestly illegal and committed by high-ranking individuals with policy-making discretion. See, eg, Dinstein, supra note 3 at 154–55; Lippman, supra note 18 at 180–81. Although Dinstein does not himself accept this characterization, he notes its adoption by many involved with the IMT itself. See also Cassese, Antonio, International Criminal Law (Oxford: Oxford University Press, 2003) at 232, n 3; Gaeta, Paola, “The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law” (1999) 10:1 EJIL 172 at 180 . In practice, however, this presumption was not accurate (see, eg, assessment of legal uncertainty concerning the use of prisoners for construction of fortifications by the USMT in the High Command case, supra note 19; and discussed in more detail in note 73 in this article).
21 See, eg, Rome Statute, supra note 1, art 25 (“individual criminal responsibility”) and art 28 (“responsibility of commanders and other superiors”). See also Cryer, Robert et al., An Introduction to International Criminal Law and Procedure, and edition (Cambridge: Cambridge University Press, 2010) at 417 ; Henckaerts and Doswald-Beck (Rules), supra note 18 at 556-63. Nonetheless, even individuals in very senior military positions have at times sought refuge in the plea of superior orders, albeit usually without success. Eg, Alfred Jodl argued obedience to superior orders in answer to charges of war crimes, crimes against humanity, and crimes against peace before the IMT in Nuremberg. Throughout the Second World War, Jodl held the position of chief of the operation staff of the high command of the German armed forces. In spite of this powerful position, he claimed that he was simply following the orders of his head of state, Adolf Hitler. The tribunal nonetheless found him guilty on all counts and rejected his plea of superior orders in mitigation of sentence. IMT Judgment, supra note 12 at 568–71. On 16 October 1946, Jodl was hanged.
22 There is no doubt that as a matter of international law a state bears responsibility for internationally wrongful acts committed by its armed forces. See, eg, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ General List no 91 (26 February 2007) at 142; Henckaerts and Doswald-Beck(Rules), supra note 18 at 530–36.
23 Eg, in 1474, Peter von Hagenbach, the governor of the Upper Rhine appointed by Charles, Duke of Burgundy, was placed on trial for using methods such as murder and rape to force the submission of the town of Breisach. He argued obedience to superior orders, submitting that he “had no right to question the order which he was charged to carry out, and it was his duty to obey.” Hagenbach then asked: “Is it not known that soldiers owe absolute obedience to their superiors?” This defence was rejected, and Hagenbach was sentenced to death. See discussion of this and other historical cases in Finta, supra note 4 at 830. See also Green, , National and International Law, supra note 18 at 263–64; Osiel, supra note 15 at 2.
24 R v Smith,  17 SC 561 (Cape Prov. Div.) (Solomon J.) [Smith].
25 Ibid at 567–68; also cited by the Supreme Court of Canada in Finta, supra note 4 at 831.
26 Finta, supra note 4(relying on Green, LC, “Superior Orders and Command Responsibility” (1989) 27 CYIL 167 at 174–75).
27 Judgment in the Case of Commander Karl Neuman: Hospital Ship “Dover Castle,” (1921) (Reichsgericht), cited in “Judicial Decisions Involving Questions of International Law” (1921) 16 AJIL 647 at 704 [Dover Castle]; discussed in Finta, supra note 4 at 832. See also Dinstein, supra note 3 at 12–14.
28 Judgment in the Case of Lieutenants Dithmar and Boldt: Hospital Ship “The Llandovery Castle,” (1921) (Reichsgericht), cited in “Judicial Decisions Involving Questions of International Law” (1921) 16 AJIL 647 at 708 [Llandovery Castle]; discussed in Finta, supra note 4 at 832–34.
29 The doctrine of reprisal permitted (and still permits, in some circumstances) the commission during wartime of certain types of otherwise unlawful acts as a mechanism to compel an enemy to resume compliance with the laws of war. See, eg, discussion of this doctrine in Henckaerts and Doswald-Beck (Rules), supra note 18 at 513-29; and in note 82 in this article. See also Lippman, supra note 18 at 213–14 (discussing post-Second World War treatment of superior orders in the context of reprisals).
30 See, eg, discussion in Dinstein, supra note 3 at 14–16. See also Zimmermann, Andreas, “Superior Orders,” in Cassese, Antonio, Gaeta, Paulo, and Jones, John RWD, eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002), volume 1, 957 at 961–62.
31 Llandovery Castle,supra note 28 at 721.
32 Ibid at 722.
34 Control Council Law no 10, supra note 19. The plea of superior orders also received extensive treatment in separate national level trials conducted by various Allied powers in subsequent years, some of which are discussed later in the third part of this article. See, eg, Dinstein, supra note 3, and Green, National and International Law, supra note 18, for more detailed discussion of these historical proceedings.
35 See, eg, Osiel, supra note 15 at 42–43.
36 In re List and Others (Hostages Trial), Judgment 215 (19 February 1948) (USMT, Nuremberg), 15 ILR 632 at 650 [Hostages case].
37 Einsatzgruppen case, supra note la at 666.
38 In a number of instances, high-ranking officials from Nazi Germany attempted, without success, to seek shelter behind this doctrine. See, eg, High Command case, supra note 19. See also discussion about Jodl in note 21 in this article.
39 See, eg, discussion of treatment of superior orders by the IMT in Lippman, supra note 18 at 184, 203–4. See also Dinstein, supra note 3 at 147; Zimmermann, supra note 30 at 962–64. This is not surprising given the significant formal limitations placed on the consideration of the plea of superior orders by these tribunals. The problematic nature of this analogy is discussed in greater detail in the fifth part of this article.
40 IMT Judgment, supra note la at 466. See discussion in Dinstein, supra note 3 at 147–50.
41 See, eg, Lippman, supra note 18 at 204.
42 United States v William Calley Jr, 22 CMA 534 at 542 (CMA 1973), aff’g 46 CMR 1131 (CMR 1973), rev’d on other grounds; Calley v Callaway, 382 F Supp 650 (MD Ga. 1974), rev’d 519 F ad 194 (5th Cir 1975), cert denied, 425 US 911 (1976) [Calley]. This result is consistent with the standard established in United States v Kinder, 14 CMR 742 (CMR 1953) (in relation to an unlawful killing committed during the Korean War). See, eg, related discussion in Lippman, supra note 18 at 215–16.
43 Finta, supra note 4 at 834 (Cory J.).
44 Chief Military Prosecutor v Lance Corporal Ofer, Major Malinki Shmuel and Others, Case Concerning the Events of 29 October 1956 in Kafr Qaassem, Judgment, Appeal no 279–283/58 (3 April 1959), 44 Psakim (Judgments of the District Courts of Israel) 362 [Ofer], cited in Finta, supra note 4. For an english language translation of Ofer, see (1985) a Palestine YB Int’l L 69.
45 See, eg, Osiel, supra note 15 at 71–74. Osiel raises concerns that the resulting lack of legal clarity renders the manifest illegality rule an ineffective exception — that is, it is only in the most extreme cases where the plea of superior orders will be precluded on this basis (ibid). This critique regarding under-litigation of legal principles also applies to many other areas of international law governing armed conflict (see, eg, discussion at 324–25).
46 Calley, supra note 42.
47 See, eg, Finta, supra note 4 (reasons of La Forest J. at 778 and Cory J. at 828).
48 See, respectively, Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res 827, 3217th Mtg, UN Doc S/RES/827 (1993), art 7(4); Statute of the International Criminal Tribunal for Rwanda, SC Res 955, 3453d Mtg, UN Doc S/RES/ 955 (1994), art 6(4). Indeed, there is a reasonable argument that the unqualified nature of this restriction went beyond existing precedent. See, eg, Osiel, supra note 15 at 43. See also Gaeta, supra note 20 at 181, and Zimmermann, supra note 30 at 961, noting the continued reservation of the United States to the adoption of an absolute standard for the ICTY.
49 See, eg, Prosecutor v Drazen Erdemovic, Judgment IT-96-aa-A (7 October 1997) (International Criminal Tribunal for the Former Yugoslavia (ICTY), Appeals Chamber) [Erdemovic] and its various separate and dissenting opinions. This issue is discussed in greater detail later in this article.
50 Rome Statute, supra note l, art 33.
51 See, eg, Henckaerts and Doswald-Beck(Rules), supra note 18 at 563–67 (“practice that solely refers to the unlawfulness of the act ordered, without the requirement of knowledge of such unlawfulness, is not sufficiently widespread and uniform as to establish a rule of customary international law”). See also Cryer et al., supra note 21 at 416–17; Zimmermann, supra note 30 at 965–66, 972 (supporting the customary legal status of these tests and noting the “doubtful” existence of an absolute customary prohibition on invocation of superior orders as a full defence, particularly in light of its national judicial treatment). However, see Cassese, supra note 20 at 232–33, 241; Gaeta, supra note 20 at 190 (arguing that “it departs from customary international law without any well-grounded motivation” and that national treatment is distinguishable from an absolute international prohibition). However, Cassese himself notes that there may be an exception “where the law on a particular matter is obscure or highly controversial, in which case the defence of mistake of law may be raised.” Cassese, supra note 20 at 233.
52 Rome Statute, supra note l, art 33(a).
53 Ibid, art 8(1).
54 For further detail on various provisions concerning the crime of aggression, see Review Conference of the Rome Statute, The Crime of Aggression, 13th Plenary Meeting, ICC Doc RC/Res.6 (11 June 2010). Prior to the 2010 review conference, the Rome Statute included reference to the crime of aggression but provided that the ICC would only be able to exercise its jurisdiction over this crime following the formal adoption of a definition of the offence. Rome Statute,supra note 1, art 5(2).
55 Ibid., art 8bis(i). Art 25(3bis) also restricts the various heads of individual criminal responsibility for the crime of aggression, including aiding and abetting, to persons in such positions.
56 See, eg, High Command case, supra note 19.
57 Eg, as discussed in note 21, such a position did not prevent Alfred Jodl (chief of the operation staff of the high command of the German armed forces) from arguing obedience to superior orders in the context of crimes against peace, albeit unsuccessfully.
58 Furthermore, art 8bis(1) establishes that the crime of aggression applies only to “an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” Review Conference of the Rome Statute, supra note 54. In at least some circumstances, it may be reasonable to equate reference to a “manifest violation of the Charter” with “manifest illegality” (although the former refers to jus ad bellum considerations while the latter has, instead, to this point, addressed gross violations of jus in bello).
59 Moral and legal differences, if any, between applying the plea of superior orders to volunteer soldiers and to conscripts are beyond the scope of this article.
60 Smith, supra note 24 at 567–68, recognized the objective nature of the concept of manifest illegality and its application in cases where an accused “must or ought to have known that they were unlawful.” The defence would not be necessary if the individual in question had not committed an otherwise criminal act.
61 Eg, an element of subjectivity was maintained by the USMT in the Einsatzgruppen case, supra note la at 666, which focused on execution of a criminal order by a soldier “with malice of his own.” Similarly, the Leipzig Court decision in the Llandovery Castle, supra note 28 at 722 [emphasis added], addressed conduct “universally known to everybody, including the accused, to be without any doubt whatever against the law.”
62 Eg, genocide requires specific intent to destroy an identified group, in whole or in part, while a crime against humanity requires widespread or systematic conduct directed specifically against an identifiable group. See, respectively, Rome Statute, supra note 1, Arts. 6, 7. For discussion of aggression, see notes 54–58 in this article and related text.
63 See, eg, Rome Statute, supra note 1, art 8, in particular, conduct of hostilities crimes such as: “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (art 8(2)(a)(iv)); or “[d]estroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” (art 8(a)(b)(xiii), international conflict, and art 8(2)(e)(xii), non-international conflict). See, eg, related discussion in Osiel, supra note 15 at 151.
64 Finta, supra note 4. Subsequent legislation in Canada has restricted the domestic precedential value of Finta, among other things, by further broadening the circumstances in which the plea of superior orders will be denied to an accused. See, eg, discussion in note 75 in this article.
65 Ofer, supra note 44.
66 Here one must remember that a successful defence of superior orders may relieve the individual soldier of criminal responsibility, but it does not (necessarily) lead to impunity for the acts in question. Individual criminal liability will — or, at least should — arise for persons further up the chain of command that ordered, or were otherwise responsible for, the commission of the crimes in question. However, see Paust, supra note 15 at 227-28, who maintains that the Supreme Court of Canada “set improper thresholds” with the judgment in Finta. See also Cassese, supra note 20 at 241, who argues that, in general, “the [International Criminal] Court should begin from the assumption that an order to engage in such violations [that is, war crimes] is by definition ‘manifestly unlawful’” (on the basis of his (controversial) assertion that art 33 is inconsistent with prior existing customary law).
67 See, eg, related discussion in Osiel, supra note 15 at 114, 118.
68 See, eg, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3, 16 ILM 1391 (1977) (entered into force 7 December 1979), art 51 [Additional Protocol I].
69 See, eg, related discussion in Osiel, supra note 15 at 64-65, 92–93, 135. To these issues, one must add the often difficult task of assessing reasonable conduct through the fog of war (that is, with incomplete information in a dynamic and hostile environment).
70 Art 33 provides only that superior orders “shall not relieve … criminal responsibility unless” these factors are met. Rome Statute, supra note 1.
71 See, eg, Cryer et al., supra note ai at 418, 420. The existence of superior orders may also be a relevant factor in a mistake of fact argument. Eg, a soldier may be misinformed by a superior concerning the factual nature of a target in the course of being ordered to attack it. See, eg, related discussion in Osiel, supra note 15 at 49–50, concerning an order to attack a protected cultural building on the mistaken basis that it is being used to store ammunition (which would have eliminated its protection). See also Dinstein, supra note 3 at 83–87. Mistake of fact may be accepted as a defence before the ICC “only if it negates the mental element required by the crime.” Rome Statute, supra note 1, art 32. See also Lippman, supra note 18 at 209, for a discussion of the successful invocation of superior orders in defence of mistake of fact in national trials following the Second World War.
72 Rome Statute, supra note 1, art 33(a) [emphasis added]. The use of “may” (rather than “shall”) further supports arguments that the criteria in art 33 need not automatically establish a valid defence of superior orders in all cases. While Cryer et al, supra note 21 at 415, argue against this permissive reading of “may,” they do so only with respect to general mistakes of law on the ground that mistakes negate mens rea and therefore necessarily found a legitimate defence. However, this argument does not apply to the defence of superior orders.
73 See, eg, Cryer et al., supra note 21 . This also appears consistent with judicial treatment of the plea of superior orders. See, eg, the findings of the USMT in the Hostages case, supra note 36 and related text. However, see Dinstein, supra note 3 at 76, 87–88 (advocating treatment of superior orders as a circumstantial factor in a mistake of law defence relying on negation of the requisite mens rea). Cassese, supra note 20 at 238–39, also interprets the USMT decision in the High Command case as establishing a defence of “lack of mens rea due to uncertainty of law.” However, the specific passage cited in support of this assertion suggests instead that the issue for the USMT was not a general mistake of law establishing lack of mens rea but, rather, a mistake founded on the existence of superior orders and a valid presumption of legality in this context. With respect to a charge of unlawfully using prisoners for construction of fortifications, the USMT in the High Command case found the accused not responsible on the basis that the orders requiring them to do this “were not criminal upon their face, but a matter which a field commander had the right to assume was properly determined by the legal authorities upon higher levels” (cited Cassese, supra note 20 at 238–39 [emphasis added]).
74 Eg, Zimmermann, supra note 30 at 967, argues that, as an exception to the general rule against acceptance of superior orders as a defence, the requirements of art 33 must be “interpreted narrowly.”
75 Canada’s domestic implementation of the Rome Statute lends support to such a reading. Section 14(1) of the Crimes against Humanity and War Crimes Act, SC 2000, c 24, establishes that the plea of superior orders “is not a defence … unless” these three requirements are met and expressly provides in s 14(a) that “orders to commit genocide or crimes against humanity are manifestly unlawful.” Although it thus generally incorporates the language of the Rome Statuteconcerning superior orders, the act then places further significant restrictions on the application of this defence in Canadian courts by providing in s 14(3) that “[a]n accused cannot base their defence under subsection (1) on a belief that an order was lawful if the belief was based on information about a civilian population or an identifiable group of persons that encouraged, was likely to encourage or attempted to justify the commission of inhumane acts or omissions against the population or group.” Unlike s 14(a), relating to crimes against humanity and genocide, this provision does not characterize such a belief as “manifestly unlawful.” Instead, s 14(3) appears to address the reasonableness of the absence of subjective knowledge of illegality. In the alternative, it establishes a fourth substantive requirement for the application of the defence of superior orders. In either case, this provision therefore places limits on the defence of superior orders beyond those expressly established by the Rome Statute. Eg, an accused may act on a belief concerning an “identifiable group of persons” yet not commit a crime against humanity (which requires widespread or systematic conduct directed specifically against that group) or an act of genocide (which requires specific intent to destroy the identified group in whole or in part).
76 See, eg, related discussion in Osiel, supra note 15 at 289. Cryer et al., supra note 20 at 419, argue instead that such variations (eg, in rank, training, occupation, and experience) may support the application of “different standards” of manifest illegality when assessing the plea of superior orders. However, these variable factors are arguably better applied in an assessment of subjective knowledge of illegality rather than in the application of an objective standard.
77 In many cases, there may also be a conflict between the known domestic obligation (that is, obey in the absence of manifest illegality) and other domestic obligations that remain unclear (eg, whether the conduct in question constitutes a war crime under domestic legislation).
78 Osiel, supra note 15, characterizes the situation in precisely this manner and downplays the actual legal dilemma faced by soldiers (and thus more easily supports arguments for greater accountability). See also similar arguments in Cassese, supra note 20 at 231 ; Cryer et al, supra note ai at 415-16. Though Osiel, supra note 15 at 94, recognizes that soldiers may be faced with conflicting legal duties, this is discussed in relation to the substantive content of the law governing specific conduct rather than the general obligation of obedience to orders itself. In contrast, this may be an accurate characterization of the choice made by states that establish and uphold domestic legal obligations of obedience and corresponding presumptions of legality. However, it should be noted that this is a very widespread state practice that may support the existence of a customary international law exception to this general presumption applicable to states themselves (that is, supporting the international legality of establishing domestic obligations of obedience and presumptions of legality).
79 For the reasons outlined in the preceding paragraph, this article therefore disagrees with the contention by Dinstein, supra note 3 at 36, 76–77, 87–88, that there should be no distinction between the plea of superior orders and other arguments based on mistakes of law that do not rest on legally mandated obedi-ence and presumptions of legality.
80 Eg, the CF Code of Conduct, supra note 14 at A–41, instructs soldiers that in cases of subjective doubt, the “first step of course must be to seek clarification.” Despite encouraging clarification, there remains a clear presumption in favour of obedience. The Code of Conduct further establishes that “if after doing so the order still seems to be questionable you should obey the order — unless — the order is manifestly unlawful.”
81 Eg, “making improper use of the military insignia and uniform of the enemy … resulting in death or serious personal injury” is criminalized only in the context of international armed conflicts. Rome Statute, supra note 1, art 8(2)(b)(vii). See also related discussion in Osiel, supra note 15 at 64, 104–5.
82 In limited circumstances, the doctrine of reprisal permits the commission of certain types of otherwise unlawful acts during armed conflict — particularly those not directed against civilians — as a mechanism to compel an enemy to resume compliance with the laws of war. See, eg, discussion of this doctrine in Henckaerts and Doswald-Beck(Rules), supra note 18 at 513–29. Indeed, not all states even accept an absolute legal prohibition on reprisals against civilians themselves (see, eg, at 520–23). For an example of historical discussion of this doctrine in the context of the defence of superior orders, see Dover Castle, supra note 27 and related text (though modern international humanitarian law now establishes clearer prohibitions concerning reprisal against medical vessels (as outlined, eg, in Henckaerts and Doswald-Beck (Rules), supra note 18 at 524)). For an interesting, albeit controversial, discussion of this doctrine, particularly its modern content and potential application to the campaign against terrorism, see Osiel, Mark, The End of Reciprocity: Terror, Torture and the Law of War (Cambridge: Cambridge University Press, 2009).
83 See, in particular, Gaeta, supra note 20 at 190-91. Eg, Gaeta argues that “[i]t should not be difficult for the Court to hold that orders to commit any of the crimes enumerated in Article 8 are always manifestly illegal and consequently can never provide a defence for subordinates” (at 191). See also Cassese, supra note 20 at 82.
84 See, eg, Cassese, supra note 20 at 241. As a result, he argues that “at present any serviceman is expected and required to know whether the act he is about to commit falls under the category of war crimes and must be aware of whether or not the execution of a superior order involves the commission of such a crime” (ibid [emphasis in original]). Gaeta, supra note 20 at 190, also makes a similar argument based on reference in the Rome Statute preamble to “the most serious crimes of concern to the international community as a whole.”
85 Though Cassese, supra note 20 at 241, himself notes that one may continue to be “faced with the exceptional or rare occurrence that the substantive law on the matter (that is, a particular provision of the ICC Statute) is unclear and the agent may usefully plead the defence of mistake of law.”
86 The USMT in the High Command case expressly noted that soldiers should not be equated with lawyers. See, eg, discussion in Dinstein, supra note 3 at 185. See also the statement of the judge advocate in the Peleus trial, before a British military court in Germany, that “[i]t is quite obvious that no sailor and no soldier can carry with him a library of International Law, or have immediate access to a professor in that subject who can tell him whether or not a particular command is a lawful one.” Trial of Kapitanleutenant Heinz Eck and Four Others for the Killing of Members of the Crew of the Greek Steamship Peleus, Sunk on the High Seas (Peleus Trial), Judgment i (17-20 October 1945) (British Military Court for the Trial of War Criminals Held at the War Crimes Court, Hamburg), cited in Law Reports of Trials of War Criminals: Selected and Prepared by the United Nations War Crimes Commission (London: His Majesty’s Stationery Office, 1947), volume 11 at l2.
87 Additional Protocol I, supra note 68, art 82, establishes that states “shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the [Geneva] Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.” Art 83 establishes a corresponding obligation to include the study of international humanitarian law (specifically, the 1949 Geneva Conventions and Additional Protocol I) in military training. As Osiel, supra note 15 at 345, notes in Obeying Orders, “[t]he presence of legal counsel inevitably raises the standard of care required of commanders, in assessing the reasonableness of their errors after the fact.” Similarly, he submits that reasonable reliance on such advice should make acquittal easier (at 346).
88 Obviously, this places a corresponding and substantial moral — and arguably legal — burden on military lawyers. See, eg, Osiel, supra note 15 at 346–47, for a brief discussion of this issue. While the extent of this obligation is beyond the scope of this article, it is clearly an issue that deserves more detailed assessment. Dinstein, eg, supra note 3 at 167, argues that this consideration should also extend to reliance on the legal opinions offered by non-military lawyers. Indeed, he argues that this would be more justified than reliance on the orders of superiors who are likely not themselves legal experts. The modern obligation to provide legal advice to military commanders may mitigate this latter concern. In any event, the obligation to obey superiors does not generally extend to persons outside of the military chain of command, however knowledgeable they may be, nor is it limited by reference to such outside opinions. The existence of such an opinion may nonetheless be relevant both to the reasonableness of compliance with orders without seeking prior clarification and to a general defence of mistake of law in the event of non-compliance.
89 Eg, the judge advocate in the Calley prosecution, supra note 42 at 542 and related text, argued before the court that, “[i]n determining whether or not Lt. Calley had knowledge of the unlawfulness of any order … you may consider all relevant facts and circumstances, including Lt. Calley’s rank, educational background, OCS [Officer Candidate School] schooling, other training while in the Army, including Basic Training, and his training in Hawaii and Vietnam, his experience on prior operations involving contact with hostile and friendly Vietnamese, his age, and any other evidence tending to prove or disprove that [at the time], Lt. Calley knew the order was unlawful”[emphasis added].
90 Finta, supra note 4. See, eg, related arguments in Osiel, supra note 15 at 292.
91 As Osiel, supra note 15 at 136, n 27, recognizes, “[t]here would, of course, remain the question of whether the defendant is telling the truth regarding his professed belief in the legality of the orders he received from his superiors.”
92 Nonetheless, this will involve a lower threshold than that proposed by Osiel, supra note 15 at 325, who advocates a general presumption against compliance with unlawful orders with a corresponding defence arising from a reasonable belief in their legality. He argues that “[t]he soldier would no longer be expected to resolve any and all doubts about the legality of superior orders in favor of obeying them” (at 288). In contrast, recognizing the continued existence of mandatory presumptions of order legality, this article suggests only that for the full defence to apply soldiers must either make reasonable efforts to seek clarification of questionable orders or demonstrate that their failure to do so was itself reasonable.
93 See Garvey, Stephen P, “Punishment as Atonement” (1999) 46 UCLA L Rev 1801 , for an analysis of the need for both punishment and atonement following the commission of a criminal act. For individuals who do obey immoral commands, significant feelings of responsibility and remorse may arise when they are finally removed from the hierarchy in question. See, eg, Milgram, Stanley, Obedience to Authority: An Experimental View (New York: Harper and Row, 1974) at 164 . In contrast to absolute acquittal, punishment and atonement may provide a method to overcome this result, allowing for the full and effective reintegration of the individual into society.
94 This is particularly true in times of armed conflict. Failure to obey orders immediately and without question may at times result in serious threats to the soldier’s comrades or to national security. However, knowing compliance with illegal orders for these reasons is not an example of moral weakness but, rather, the adoption of a different moral standard by the soldier, in which less weight is given to compliance with the laws of war than to these other considerations.
95 For the reasons outlined earlier, questioning and outright refusal of orders by soldiers is difficult. This is compounded by a seemingly natural human inclination to obey when placed in hierarchical relationships as exemplified in experiments conducted by Stanley Milgram in the early 1970s. Milgram, supra note 93 at 131, suggests that overcoming individualism is necessary for any hierarchy to function, arguing that “[b]ecause people are not all alike, in order to derive the benefit of hierarchical structuring, readily effected suppression of local control is needed at the point of entering the hierarchy, so that the least efficient unit does not determine the operation of the system as a whole.” Profound attitudinal shifts may result from such a hierarchical relationship, leading to a situation where “the person entering an authority system no longer views himself as acting out of his own purposes but rather comes to see himself as an agent for executing the wishes of another person. Once an individual conceives his action in this light, profound alterations occur in his behavior and his internal functioning. These are so pronounced that one may say that this altered attitude places the individual in a different state from the one he was in prior to integration into the hierarchy”(at 133 [emphasis in original]).Even absent any pronounced outside coercion or lawful authority, these experiments highlighted the disturbing ease with which a “substantial proportion” of otherwise normal individuals would inflict pain at the behest of a superior, even one with very little actual power (at 189). This phenomenon was recently illustrated by a similar experiment conducted for a French television documentary. “Contestants Turn Torturers in French TV Experiment: Four of Five Players in Fake Game Show Willingly ‘Shocked’ Man to ‘Death,’” Ottawa Citizen (17 March 2010) A7. See discussion of Milgram experiments and their relevance to the plea of superior orders for military personnel in Green, , National and International Law, supra note 18 at 256–61.
96 Although Milgram, supra note 93 at 164, noted that disobedience was difficult, it was not impossible, and not all experimental subjects obeyed the immoral commands of their superiors. However, he observed that “[t]he price of disobedience is a gnawing sense that one has been faithless. Even though he has chosen the morally correct action, the subject remains troubled by the disruption of the social order he brought about, and cannot fully dispel the feeling that he deserted a cause to which he had pledged support. It is he, and not the obedient subject, who experiences the burden of his action.” Avoiding uncritical acceptance of superior orders as a defence may serve, in part, to reallocate this burden, shifting it to those morally responsible for the commission of criminal acts (along with potential individual criminal responsibility for issuing the order in question and through the doctrine of command responsibility).
97 Indeed, art 76 specifically requires that the ICC consider evidence or submissions that are “relevant to the sentence,” whether presented at trial or on further hearing. Rome Statute, supra note 1, art 76.
98 Reference to moral choice largely involved situations of manifest illegality where the underlying issue was not superior orders but duress based on illegitimate coercion. This reference arguably permitted post-Second World War tribunals to consider superior orders in the context of a defence despite the formal prohibition on doing so in their founding authority.
99 See, eg, post-Second World War decisions incorporating the concept of “moral choice” and the opinion of the ICTY in Erdemovic, supra note 49.
100 This type of relationship has nevertheless been characterized by at least one defendant as acting “on the orders of his superiors and under hierarchical dur-ess.” Prosecutorv Goran Jelisic, Judgment IT-95-10-T (14 December 1999) at para 12 (ITCY).
101 Rome Statute, supra note 1 , art 31 (1)(d). This defence is in theory available with respect to all crimes within the ICC’s effective jurisdiction, although the majority opinion in Erdemovic, supra note 49, will severely constrain its application in practice, given that these crimes often — if not usually — involve the killing of innocents.
102 See Erdemovic, supra note 49, and related discussion later in this article. As a result, it appears difficult, if not impossible, to support such a claim when the soldier in question faced nothing more than a prison sentence for disobedience.
103 Einsatzgruppen case, supra note la at 666.
104 Erdemovic, supra note 49.
105 Unlike superior orders, the ICTY was permitted to accept duress as a full defence.
106 See, eg, Erdemovic, supra note 49 (joint separate opinion of McDonald J. and Vohrah J. at para. 75; and separate and dissenting opinion of Li J. at para. la). The majority decision accepted a Kantian view of moral responsibility where punishment should always result from the killing of innocents, even when resulting from duress involving threats to the life of the soldier. This view appears consistent with Garvey’s, supra note 93, arguments concerning punishment and atonement. However, in a strongly argued dissent, Stephen J. recognized the rationality of Erdemovic’s choice under the circumstances given that his victims were going to be killed whether or not he participated in the massacre. The only question was whether Erdemovic would die as well (Erdemovic, supra note 49 (separate and dissenting opinion of Stephen J. at para. 54)).
107 Instructions for the Government of the Armies of the United States in the Field, Prepared by Francis Lieber, promulgated as General Orders no. 100 by President Lincoln (24 April 1863), art 15, cited in Schindler, Dietrich and Toman, Jiri, eds, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (Leiden, The Netherlands: Martinus Nijhoff, 1988) at 6.
108 See, eg, Additional Protocol I, supra note 68, art 43(a) (recognizing “the right to participate directly in hostilities” for members of the armed forces). There is no express combatant immunity in internal armed conflict, although there is an obligation for states to consider the widest possible amnesty. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 8 June 1977, 1125 UNTS 609, 16 ILM 1442 (1977) (in force 7 December 1978), art 6(5).
Christopher K. Penny is an assistant professor in the Norman Paterson School of International Affairs at Carleton University, Ottawa. The author would like to thank Stephen Garvey, Josh Chandler, and an anonymous reviewer for insightful comments on earlier drafts. This article has been substantially revised and updated since its presentation at the seventh Canadian Conference on Ethical Leadership. Ethical Behaviour in an Environment of Complexity and Chaos (presentation at the Canadian Conference on Ethical Leadership, Royal Military College, Kingston, ON, 29 November 2006).
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