Defending the Indefensible: The Defence of Superior Orders for War Crimes
Abstract
The laws of war have always been complex and open to interpretation due to their international nature. While the Rome Diplomatic Conference saw the creation of a single international criminal code that has since been adopted by 106 different states, there is still room for significant interpretation within even this legal regime. This article argues that, in the heat of battle, when powerful instincts for self-preservation cloud the soldier’s judgment, ADF personnel may simply be incapable of determining the legality or otherwise of an order and will resort to instinctive obedience—just as their training has prepared them to do. In this instance, if the orders they are instinctively following lead them to commit war crimes, they will most likely be found guilty of criminal acts. To avoid this situation, the author makes several practical recommendations for improving the ability of ADF personnel to judge the legality of orders in battle, while presenting a powerful historical case which demonstrates the imperative for such action.
The soldier is charged with the protection of the weak and unarmed. It is the very essence and reason for his being – a sacred trust.
- General Douglas MacArthur, 1946
Introduction
On 17 July 1998, the impossibly titled ‘United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court’—known, fortunately, as the Rome Diplomatic Conference—finalised the draft Statute for the International Criminal Court.1 On 1 July 2002, once the requisite sixty states had become parties, the Statute became law and international war crimes law came of age. Today, 106 states have become parties to the Statute.
While the Rome Statute, like any document that deals in the convoluted course of international justice, is necessarily extensive, there are two articles in particular—Articles 28 and 33—that have direct military command and leadership implications for any armed force. It is crucial that every military force examine the ramifications of the Statute in general—and Articles 28 and 33 in particular—and the Australian Defence Force (ADF) is no exception. This article will briefly consider the implications of both Article 28 and Article 33 for Australia’s military, necessarily focusing on the latter with its broader ramifications.
Article 28 of the Rome Statue of the International Criminal Court
Under the provisions of the Rome Statute’s Article 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:
(a) The superior either knew, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes;
(b) The crimes concerned activities that were within the effective 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.2
The term ‘military commander’ is used throughout this article and it is clear that Article 28 covers the responsibilities of all military commanders at all levels—from government and planning bodies to junior non-commissioned officers. Article 28 is a direct attempt to eliminate the ability of war crimes defendants to use the defence of ‘obedience to superior orders’ in the manner of the accused at both the Nuremburg and Tokyo Trials and, more recently, the American officers on trial in the notorious My Lai massacre case and the Canadian officers tried for abuses in Somalia. These cases will be analysed in more detail later in this article.
The Deilemma for Today's Military: The Legal Obligation to Obey3
Under the ADF’s national military law, a soldier has a legal obligation to obey the orders of a superior soldier or officer. The Defence Force Discipline Act treats failure to obey as a breach of military law, particularly in the case of soldiers who disobey the commands of their superiors. Under Section 27, ‘Disobedience of a lawful command’, and Section 29, ‘Failing to comply with a lawful general order’, a defence member or defence civilian must follow all orders and commands. Yet there are exceptions and the ADF tacitly recognises this. In fact, the Army’s current recruit training regime conveys to recruits the clear understanding that they do not have to follow unlawful or illegal orders and that they have the right to disobey commands on these grounds.4 This appears to directly contradict the basic principles of military discipline. The aim and purpose of all forms of discipline, even the most basic foot drill, is ‘to instil instinctive obedience and reaction to words of command’.5 Essentially, soldiers are trained to do what they are told, when they are told, instinctively, without questioning the command. This raises the issue of differentiation: when is a soldier expected to consider the legality of the order—thus questioning it—and when is the soldier expected to act instinctively?
To a highly trained and disciplined soldier, obedience to the orders of a superior is second nature. It is pure, unthinking reaction. Under Article 28, however, the soldier must now discern the legality of the order prior to its enactment, and make a decision. The question remains: when does the soldier follow orders and when does he or she refuse? Where is the line drawn?
This is not a problem solely faced by Australia’s military. In the armed forces of the United States of America, the Uniform Code of Military Justice (UCMJ) mirrors the DFDA. The UCMJ reads like any other criminal justice code, except for its specific military offences including wilfully disobeying a superior commissioned officer6 and insubordinate conduct towards a warrant officer, non-commissioned officer or petty officer.7 Both these stipulations state that it is an offence to deliberately disobey a lawful command or order. Indeed, the latter (Article 91) still carries the option of the death penalty, as does murder, also an offence under the UCMJ.8 Nowhere in this 62-page document are there grounds for those subject to this code to refuse to obey an order. Yet the Department of the Army Field Manual, The Law of Land Warfare,9 rules that obeying the orders of a superior officer does not constitute a defence against war crimes.10 In some attempt at mitigation, it does, however, allow the court to take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces, although this carries the caveat that members of the armed forces are bound only to obey lawful orders.11
Is it reasonable to expect a soldier to fulfil both a duty to obey and a duty to disobey?12 Is there an achievable balance between duty to a superior under military law and the potential duty to disobey? According to the International Red Cross, everyone has a right—in fact, it is their duty—to refuse to obey an order to commit a violation of the Law of Armed Conflict.13 For the average civilian, this is an easy duty to follow, as it is a fundamental right under international humanitarian law, human rights law and domestic criminal law. For the soldier, however, this may well constitute the most difficult decision he or she ever has to make—the conscious decision to disobey an order.
Obedience to Superior Orders in History
The profession of arms has long demanded—and long received—the unquestioning obedience of subordinates to their superiors. Disobedience was sufficiently rare in the annals of military history that, prior to the twentieth century, legal protection of disobedience and legal demands for independent thought by the basic soldier or
infantryman were barely addressed at all. But the duty to obey or disobey has emerged as society has evolved through the ages, although its interpretation often relies on its discrete national context. To this day, interpretations often vary so radically that subordinates in one country may be deemed never to have been responsible for actions committed under orders while, in a neighbouring country, the same soldier may have been considered always responsible for the same actions.
In 1621, King Gustavus Adolphus of Sweden promulgated his ‘Articles of Military lawwes to be observed by the warres’. Article 46 stated that ‘No Colonel or Captain shall command his soldiers to do any unlawful thing which who so does, shall be punished according to the discretion of the judge’.14 Similarly, under a British code promulgated in 1749, obedience to superiors was deemed legal only when the orders given were also legal. This provision was not rescinded until an updated code was introduced in 1914. Interestingly, this later code reasserted superior orders as an absolute defence.15 In 1863 the United States promulgated the Instructions for the Government of the Armies of the United States in the Field which later became known as the ‘Lieber Code’. Article 71 of the Lieber Code states:
Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.16
In 1914, however, the Americans adopted a military code that was clearly modelled on the British system. This code asserted that violations of the laws of war would not be prosecuted if the actions were committed as a result of superior orders.17
The first German military code, adopted in 1872, rejected superior orders as an absolute defence. The version under which the Germans fought in the Second World War stated:
If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefore. However, the obeying subordinate will share the punishment of the participant:
(1) if he has exceeded the order given to him, or
(2) if it was within his knowledge that the order of his superior concerned an act by which it was intended to commit a civil or military crime or transgression.18
During the Second World War, both the Americans and British amended their military and war crimes codes to minimise the defence of obedience to superior orders. This action was regarded by cynics as an attempt to prosecute the Germans and Japanese more effectively at Nuremberg and Tokyo with scant regard for those crimes committed by Allied forces under what was considered to be ‘victors’ justice’.19
Article 33 and the Legality of the Act
An important consideration in any war crimes case is whether the perpetrator realised that the act was illegal.20 This is particularly pertinent to the soldier who, under the Rome Statute, is now tasked with deciding whether the superior’s orders are legal or otherwise. Soldiers are trained to follow orders and to react instinctively to words of command. On the battlefield amidst the chaos of war, unless an order is overtly illegal, they will obey instinctively, as lives may be at risk. Soldiers understand that their inaction or hesitation in combat can result in loss of life, and they will follow even dubious orders to prevent this, questioning later rather than in the heat of the moment. Article 33 makes some allowance for this:
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:
(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.21
Under the provisions of the Rome Statute, orders to commit genocide or crimes against humanity are manifestly unlawful.22 The five acts listed under the crime of genocide are obviously morally wrong, contravening as they do all the fundamentals of international human rights law.23 There are also eleven acts and nine definitions listed as crimes against humanity—a lengthy and grim list for rote-learning by the average soldier. 24 Yet, for most soldiers, the sub-paragraph listed as ‘other inhumane acts’ presents the greatest dilemma.25 This particular section—and, in fact, the entire article—is so broad in its scope that any military tactic or method of waging war could be manipulated to fit its specifications.
The Rome Statute is extraordinarily complex, a reflection of the complex nature of war crimes law itself. It also contains apparent inconsistencies. The Statute describes genocide and crimes against humanity as ‘unlawful’. Yet the eight grave breaches of the Geneva Conventions; the twenty-six acts that violate the laws and customs of war; and the sixteen other acts listed as offences for conflicts not of an international character are treated separately. These are listed simply as ‘war crimes’.26 Thankfully, the matter of crime differentiation is not the soldier’s province—they are all ‘war crimes’ and any order to commit such acts must immediately sound a warning within the soldier’s subconscious. Yet, the devil, as the old adage insists, is in the detail. Orders issued in the heat of battle by a trusted superior will not necessarily be questioned by the soldier in the firing line.
How can soldiers make informed decisions as to what constitutes a legal order when their entire focus is on self-preservation? It begs a simpler solution than that offered by the Rome Statute, which is so complicated that arguments continue to this day over the interpretation of its articles. Combat soldiers cannot carry copies of the Statute, the Geneva Conventions, three additional protocols, the relevant Hague Laws and treaties, and his own military discipline code into battle. Soldiers have a sufficiently difficult mission without concerning themselves with the various stipulations of the laws of war. Simplicity is the answer and, for the ADF, teaching soldiers to become familiar with the International Red Cross handbook Code of Conduct for Combatants may present a neat solution.27 This pocket-sized booklet contains sufficient information on the laws of war to train recruits in battlefield conduct. Having completed their basic training, soldiers should then receive job-specific training in relation to the laws of war and their requirements and responsibilities under international humanitarian law. Such training could increase in scope and complexity as soldiers progress through the ranks or become more highly specialised.
How did it happen? Examples from History
‘There is only one sort of discipline—perfect discipline. If you do not enforce and maintain discipline, you are potential murderers.’28 So declared US General George Patton to his assembled officers in 1946. Yet the history of the ancient profession of arms is rife with examples of the breakdown of this discipline and the resort to obedience to superior orders as a defence in later reckoning.
Accounts survive from medieval times which detail the trials of knights held accountable for the crimes of their foot soldiers. In the 1419 Trial of Hagenbach, a knight was charged with responsibility for crimes committed by those under his command, including murder, rape, perjury and other heinous acts committed during the subjugation of the citizens of Breisach in the Upper Rhine on the orders of his master, Duke Charles of Burgundy. Before the ad hoc international tribunal, composed of twenty-eight judges, Hagenbach’s counsel pleaded that the knight had been merely following the orders of his superior, Duke Charles, and that he had no right to question or disobey those orders. The defence was rejected. Hagenbach was found guilty, stripped of his knighthood and condemned to death.29
Another failed attempt to assert the defence of obedience to superior orders occurred in England in 1660 following the restoration of King Charles II. Colonel Axtell, commander of the guard that presided at the execution of Charles I, was tried for treason and murder. He claimed that he was obeying the orders of his superior; the court, however, rejected his claim on the basis that obedience to a treasonable order is itself treasonable.30
During the Napoleonic Wars, a Scottish court rejected the plea of ‘obedience to superior orders’ by a soldier who shot and killed a French prisoner. In the case of Ensign Maxwell, the court ruled:
If an officer were to command a soldier to go out to the street and to kill you or me, he would not be bound to obey. It must be a legal order given with reference to the circumstances in which he is placed; and thus every officer has a discretion to disobey orders against the known laws of the land. 31
On 27 February 1902, in the final year of the Boer War, two Australian officers were executed by firing squad following their conviction at a court martial for the murder of Boer prisoners. Another Australian officer also convicted had his death penalty commuted to life imprisonment. The three officers were all members of the Bushveldt Carbineers, a special force operating against guerrillas in the Northern Transvaal, and all justified their actions with the claim that they were obeying orders from a superior officer. Their defence was rejected by the court.
Under the Treaty of Versailles at the end of the First World War, the Allies demanded that Germany hand over some 901 people accused of breaches of the laws of war to be tried for their crimes. Germany resisted, and the Allies eventually agreed to trials conducted by German national courts, known as the Leipzig Trials. A substantially reduced number from the original 901 proposed were tried, some pleading obedience to superior orders, while others launched a defence based on command responsibility. The two most notable cases involving the defence of obedience to superior orders concerned the torpedoing of the British hospital ships Dover Castle and Llandovery Castle by German submarines. In the case of the Dover Castle, the defendant, Lieutenant Captain Karl Neuman, the commander of the German submarine, claimed that he was acting on superior orders which were issued by his naval superiors who believed that Allied hospital ships were being used for military purposes in violation of the laws of war. The court acquitted the commander, stating:
It is a military principle that the subordinate is bound to obey the orders of his superiors; when the execution of a service order involves an offence against the criminal law, the superior giving the order is alone responsible. This is in accordance with the terms of the German law, paragraph 1 of section 47, of the Military Penal Code which states that a subordinate who acts in conformity with orders is liable to punishment as an accomplice, when he knows that his superiors have ordered him to do acts which involve a civil or military crime or misdemeanour. There has been no case of this here. The memoranda of the German government about the misuse of enemy hospital shops were known to the accused. He was therefore of the opinion that measures taken by the German Admiralty against enemy hospital ships were not contrary to international law, but were legitimate reprisals. The accused cannot, therefore be punished for this conduct.32
In the ensuing Llandovery Castle case, the same court did not so readily grant the accused a defence of obedience to superior orders. In this case, the submarine commander ordered his subordinates to open fire on survivors of the torpedoed Llandovery Castle who had managed to clamber into lifeboats. The officers who carried out the order, First Lieutenants Dithmar and Boldt, were charged with the killings and pleaded that they had followed the orders of their commander, Helmut Patzik. The court, however, rejected this defence, arguing:
The firing on the boats was an offence against the law of nations. The rule of international law, which is here involved, is simple and is universally known. No possible applicability... the [commanders] order does not free the accused from guilt. It is true that, according to paragraph 47 of the Military Penal Code, if the execution of an order in the ordinary course of duty involves such a violation the superior giving the order is alone responsible. However the subordinate obeying such an order is liable to punishment if it was known to him that the order of the superior involved the infringement of civil or military law. This applies in the case of the accused. It is certainly to be urged in favour of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law.33
Attempts to extradite Kaiser Wilhelm and try him at Leipzig for war crimes failed, as the government of the Netherlands refused to extradite him.34 While the Leipzig Trials carried the full authority of the Treaty of Versailles, they were considered by both victor and vanquished to be ‘municipal trials’.35 The tribunal which presided at Leipzig based its findings on a combination of international and German military law and was not even a party to Articles 228 and 229, the sentencing provisions of the Treaty of Versailles.36 Despite this, the tribunal produced a report entitled ‘The Responsibilities of the Authors of the War and on the Enforcement of Penalties’, which stated that:
Civil and military authorities cannot be relieved from responsibility by the mere fact that a higher authority might have been convicted of the same offence. It will be for the court to decide whether a plea of superior orders is sufficient to acquit the person charged from responsibility.37
For a ‘municipal tribunal’, Leipzig produced a useful precedent for the later treatment of the defence of superior orders in war crimes trials. Yet, Leipzig also produced its disappointments. From a total of 901 cases brought before the court during the Leipzig Trials, 888 accused were acquitted or summarily dismissed, and only thirteen convicted. Many of the sentences handed down were manifestly inadequate, and most of those convicted did not actually serve their sentence.38 The Versailles model of war crimes prosecution proved a disappointing exercise.
The failure of the Leipzig Trials following the First World War hardened the resolve of the Allies at the end of the Second World War to ensure that Nazi war criminals would be brought to justice and that appropriate retribution would be exacted. The authority of the International Military Tribunal to conduct the Nuremberg Trials was based on the London Agreement of 8 August 1945. The London Agreement was a specific charter drawn up to try the leaders and organisations of Nazi Germany accused of war crimes, crimes against peace and crimes against humanity. Article 8 of the Nuremberg Charter specifically relates to the defence of superior orders. It states:
The fact that the defendant acted pursuant to order of his Government or a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.39
The first trial began on 20 November 1945 in spectacular fashion, with the tribunal rejecting the claim by a number of defendants that they were not legally responsible for their actions because they were performed under the orders of superior authority. The tribunal stated that ‘the true test is not the existence of the order but whether moral choice [in executing it] was in fact possible’.40 On 1 October 1946, the tribunal handed down its decisions on the original defendants. Twelve were sentenced to death by hanging, seven received sentences of detention ranging from ten years to life, and three were acquitted.41 These decisions reinforced the point that obedience to superior orders does not constitute the ultimate defence for breaches of the laws and customs of war. The Nuremberg Trials produced their own disappointments for the various victims’ groups that sought revenge in the aftermath of the Nazi atrocities and those condemned German perpetrators who insisted that their actions were coerced. The trials were labelled ‘victors’ justice’ at the time—a moniker that remains. However, what these trials established with absolute clarity was that any soldier who violates the laws of war cannot obtain immunity based on a claim that he or she was acting blindly in accordance with the authority of the state, particularly when the state itself acts outside the tenets of international law.
Following the conclusion of the Nuremberg Trials, an additional twelve cases were tried under the authority of Control Council Law No. 10. This law closely resembled the London Agreement but provided a legal basis for the prosecution of war crimes trials in each of the four zones of occupied Germany. One hundred and eighty-five defendants (military and civilian) were indicted in twelve cases. These cases related to medical experiments in concentration and prisoner-of-war camps and policies and laws implemented in occupied states. Most of the defendants argued that they were simply following the orders of their superiors. Given the Nuremberg precedent, this defence failed completely. Thirty defendants were sentenced to death, including a number of doctors and SS leaders. Approximately 120 others were sentenced to custodial punishments while thirty-five were acquitted.42
On 19 January 1946, the International Military Tribunal for the Far East was constituted under the authority of General Douglas MacArthur, with British Field Marshal Sir William Slim as the Tribunal President. Many of the provisions in the tribunal’s charter were adapted from those of the London Agreement. Article 6 of the charter covered the ‘Responsibility of Accused’. This responsibility related to the defence of obedience to superior orders and stated:
Neither the official position, at any time, of an accused, nor the fact that an accused acted pursuant to order of his government or of a superior shall, of itself, be sufficient to free such accused from responsibility for any crime with which he is charged, but such circumstances may be considered in mitigation of punishment if the Tribunal determines that justice so requires.43
Eleven nations were represented at the Tokyo Trials, which took over two years and produced results parallel to those of Nuremberg. Once again the superior orders defence failed. Of the twenty-five defendants, seven were executed, sixteen were given life sentences and two others lesser terms of imprisonment.44
The Tokyo Trials, while achieving the highest profile, were not the only forum for the punishment of Japanese war criminals. In fact, the Asian countries victimised by the Japanese war machine tried a far greater number of Japanese military officials, some estimates placing the number around 5000, with up to 900 executions and more than half of those convicted receiving terms of life imprisonment.45 Many of the subsidiary trials of alleged war criminals from the Second World War were held by tribunals constituted by the governments of the countries that had been occupied in whole or part by Germany or Japan during the war. Additional military tribunals tried numerous Japanese officers in the Philippines and Australia. The defence of superior orders was used to a lesser degree in these trials.
Between 1965 and August 1973, the US Criminal Investigation Division investigated war crimes offences relating to the Vietnam War under the UCMJ. Thirty-six cases involving war crime allegations against army personnel were tried by court martial. Twenty of these resulted in convictions. The most notorious of these was the case of Lieutenant William Calley who was tried as a result of an incident at My Lai (Son My), a village in Vietnam.46
What became known as the ‘My Lai massacre’ occurred on 16 March 1968, when seventy-five members of C Company entered the village of My Lai, their mission broadly defined as the destruction of the village. Hovering above the village were two helicopters, one containing the battalion commander and the other the brigade commander. Soon after entering the village, Calley ordered his troops to round up all civilians and move them to a drainage ditch on the eastern side of the village. He then ordered his dozen or so platoon members to push the seventy or eighty villagers into the drainage ditch before directing his men to shoot into the ditch. Some of the men refused, while others obeyed. Calley himself joined in the massacre. By 11.00 am, four hours after entering My Lai, 500 villagers lay dead.47
Calley was court martialled on 12 November 1970. The core of his defence was obedience to superior orders. During the trial Calley testified:
I was ordered to go in there and destroy the enemy. That was my job on that day. That was the mission I was given. I did not sit down and think in terms of men, women, and children. They were all classified the same, and that was the classification that we dealt with, just as enemy soldiers.
The members of the jury, all veterans with combat experience, did not accept Calley’s defence of superior orders and clearly did not share his interpretation of his duty. The jury evidently reasoned that, even had Calley’s orders told him to destroy everything in sight and to ‘waste the Vietnamese’, any reasonable person would have realised that such orders were illegal and would have refused to carry them out. The defence of superior orders under such conditions is inadmissible under international and military law. The US Army’s The Law of Land Warfare states:
The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defence in the trial of an accused individual, unless he did not know or could not reasonably have been expected to know that the act was unlawful; and that members of the armed forces are bound to obey only lawful orders.48
Calley was convicted of premeditated murder and initially sentenced to life imprisonment. That sentence was later reduced to twenty years and then to ten. He served three years before being released on a bond, having served his time under house arrest in his apartment following the intervention of then US President Richard Nixon. Calley was paroled on 10 September 1975.49
An investigation conducted by the Pentagon prior to the court martial of Calley criticised the actions of both officers and enlisted men. The investigation report, known as the Peers Report after its author, Major General William Peers, recommended action against dozens of men for rape, murder, or participation in the cover up. A total of twenty-five officers and soldiers—including General Koster, Colonel Oran Henderson and Captain Medinaa, Calley’s brigade commander, battalion commander and company commander respectively—were indicted for prosecution. In the end, however, only a few men were tried and only Calley was found guilty. General Koster, who failed to report known civilian casualties and conducted a woefully inadequate investigation was, according to the Peers Report, the beneficiary of a whitewash. His charges were dropped and he was censured, reduced in rank and removed from his position as Commandant of West Point.
The court martial found Colonel Henderson not guilty on all counts. Major General Peers expressed his disapproval, writing, ‘I cannot agree with the verdict. If his actions are judged as acceptable standards for an officer in his position, the Army is indeed in deep trouble.’50
It is interesting to note that some members of Calley’s platoon refused to obey his orders to kill the villagers during the incident at My Lai. Private First Class Dursi was among those who testified at the court martial. Dursi was asked if he had fired when ordered to. He replied:
No. I just stood there. Meadlo51 turned to me after a couple of minutes and said, ‘Shoot! Why don’t you shoot! Why don’t you fire?’ He was crying and yelling. I said, ‘I can’t! I won’t!’ And the people were screaming and crying and yelling. They kept firing for a couple of minutes, mostly automatic and semi-automatic.52
Specialist Grzesik had an even more direct confrontation with Calley. Calley ordered Grzesik to take a fire team back into the village and ‘finish them off’. Grzesik refused and walked off, leaving Calley standing beside the drainage ditch. Calley then ordered Specialist Maples to use his machine-gun on the Vietnamese in the ditch, but he refused. Private Carter shot himself in the foot to avoid taking any further part in the massacre.53
Chief Warrant Officer Thompson was flying one of the helicopters hovering over the village. He was so incensed at Calley’s actions that he landed his helicopter between Calley’s troop and the civilians. Thompson ordered his men to train their guns on Calley’s troops and to open fire if they moved to fire on the villagers. Thompson evacuated nine Vietnamese and returned later for more.54 The soldiers under Calley’s command who refused to carry out his orders made the moral choice to disregard an order they knew to be unlawful. They have never been indicted for the offence of disobeying a command.
In 1982 Colonel Eli Geva, an armoured brigade commander in the Israeli army, asked to be relieved of his command during the war in Lebanon. He made his unusual request because of his moral objections to the campaign to take West Beirut. He was removed from his command, but was not disciplined.55
In February 1992, two East German border guards were tried after one of the guards killed a person fleeing across the East German border into West Berlin in February 1989. The soldier was convicted of manslaughter and sentenced to a period of detention. His defence was ‘obedience of superior orders’, given that the East German Government had enforced a ‘shoot to kill’ policy against people trying to cross the East German border. The soldier’s defence was rejected, the judge declaring that ‘Not everything that is legal is right.’56
On 21 January 1999, members of the Canadian Airborne Regiment Battle Group deployed to Somalia were observed mistreating Somali children they had caught in their area. In the worst incident, a Somali youth was captured, tortured and beaten to death. A Canadian court martial convicted the soldiers involved, all of whom had pleaded guilty. The soldiers’ defence was that they had been ordered to ‘make an example’ of the next Somali captured in their area. For the Canadians, the consequences of this incident were far-reaching and there have been a number of inquiries and courts martial, some involving command responsibility, while the unit itself has been disbanded.57
The International Criminal Tribunal for the former Yugoslavia was established by United Nations Security Council Resolution 827 on 25 May 1993. Article 7 of the tribunal’s statute directly relates to individual criminal responsibility and paragraph 4 of that article specifically concerns the defence of superior orders. The paragraph reads:
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.58
There are currently forty-four people before the tribunal, at varying stages of proceedings. These proceedings relate to either individual criminal or superior responsibility. Drazen Erdemovic pleaded guilty to the indictment of one count of a crime against humanity and received a custodial sentence. The transcript of his trial proceedings records his attempts to use the ‘superior orders’ defence. Erdemovic stated that he followed the orders, which he knew were wrong, as he was under duress from his commander who had told him that he would be summarily executed if he did not join a firing squad tasked with executing a number of civilians.59 This form of extreme coercion appears to constitute the ultimate defence against the indictment. The judges, however, thought otherwise.
The International Criminal Tribunal for Rwanda was created under United Nations Security Council Resolution 955 on 8 November 1994 and Resolution 977 on 22 February 1995. Article 6 of the tribunal’s statute relates to individual criminal responsibility and, like the Yugoslav Statute, paragraph 4 of that article specifically relates to the defence of ‘superior orders’. It rules:
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 International Tribunal for Rwanda determines that justice so requires.60
In the series of indictments that followed the civil conflict in the African nation of Rwanda, two soldiers, Clement Kayishema and Obed Ruzindana, were tried for the crime of genocide. Ruzindana attempted the defence of superior orders, but failed. On 21 May 1999, Kayishema was sentenced to life imprisonment and Ruzinda to a custodial term of twenty-five years following their conviction.61 There are currently twenty-four people before the tribunal, their trials ongoing.
Despite these recent attempts at evenhandedness in war crimes trials in both Yugoslavia and Rwanda, examples of victors bringing war crimes prosecutions against their own soldiers as distinct from defeated foes are rare. This is certainly true in relation to the Allies in the Second World War and for other wars in Algeria, Korea, Vietnam, the Middle East and the Gulf War. Should they eventuate, the proposed war crimes trials in Cambodia will stand as a stark exception.62
Breaking the Habit of Unquestioning Obedience
Daniel Masse, International Committee for the Red Cross Dissemination Delegate to Bosnia-Herzegovina, wrote in December 1992:
If, after months of discussion and great effort, I am able to change the attitude or behaviour of just one combatant, I [will] consider my work successful because maybe two, perhaps three, or even five innocent people will have been spared.63
Military training is both physically and psychologically demanding. It is a necessary part of a process designed to instil within a soldier habits of instinctive and instant obedience to command in the chaos of battle. An army functions successfully only if its soldiers exhibit that habitual, unquestioning obedience. It is a tough but effective process. As a Recruit Instructor, I have seen individuals disembark from a bus as raw recruits and, three months later, board the same bus as highly disciplined, motivated members of a team.
But is it really possible to train soldiers to obey orders only 99 per cent of the time? How can they be trained to discern the remaining 1 per cent? Is it sufficient simply to instruct them in discerning that 1 per cent of the orders which are obviously wrong or unlawful? The laws of war are notoriously blurred—never black and white, but rather grey and indistinct, open to individual interpretation by every soldier. How is this balance to be achieved? The answer may lie in the Red Cross pocket book Code of Conduct for Combatants and its ability to simplify the complexities of war crimes law.
Conclusion
There is no doubt that the establishment of the International Criminal Court is a positive step towards the enforcement of International Humanitarian Law and the prosecution of war crimes and crimes against humanity. Given the debacle of Leipzig, the inadequacy of Nuremberg and Tokyo and the American shame that was the Calley trial, many would argue that it has come almost a century too late. Now that the Rome Statute has been ratified, the challenge lies in the education of combatants in relation to Articles 28 and 33 and their ramifications for soldiers in time of war. It is the responsibility of the United Nations and other international institutions, particularly the International Committee of the Red Cross, to disseminate the stipulations of Article 33, Article 28 and the Law of Armed Conflict in general. Australia and other like-minded states must exert pressure to ensure that all international armed and security forces observe these rules. All military forces must align the various codes of military discipline to allow soldiers the opportunity to exercise a conscious choice. Without this commonality of approach there will be myriad standards according to the various interpretations of different countries.
The Rome Statute—particularly Article 33—represents the final solution to the age-old defence of ‘superior orders’ against the indefensible. The International Criminal Court must accept that there are times when soldiers will simply fail to understand the illegality of an order or be caught with no choice but to blindly obey in an attempt at self-preservation under fire. Only then should the defence of obedience to superior orders be permitted. Any lack of understanding may also be a real consequence of the complexity of the laws of war rather than poor training, and may further reflect an absence of opportunity to make a conscious decision to refuse an order. While the United Nations shoulders its responsibility to international humanitarian law, the ADF must focus on the necessary education of its soldiers. Australian soldiers are participants in global conflict and are, like all others, also subject to international law. They must now learn when to obey and when to disobey. The soldier in the line of fire may consider that this decision rests on the truism that ‘It is better to be tried by twelve good men than carried by six.’ The ADF owes its soldiers the ability to discern.
Endnotes
1 Website of the Rome Statute of the International Criminal Court relating to the adoption of the Rome Statute of the International Criminal Court, and the establishment of the Court (covering the period ending on 31 December 2003) <http://www.un.org/law/icc/index.html>.
2 Article 28, Rome Statute of the International Criminal Court, <http://untreaty.un.org/cod/icc/statute/romefra.htm>.
3 Article 33(1)(a), Rome Statute of the International Criminal Court.
4 Army Recruit Training Course Training Management Package, Module Learning Outcome 18.1.5, Department of Defence.
5 LWP-G 7-7-5 Drill, Land Warfare Development Centre, Puckapunyal, 2005.
6 Uniform Code of Military Justice (UCMJ), Article 90 <http://www.au.af.mil/au/awc/awcgate/ucmj.htm>.
7 UCMJ, Article 91.
8 UCMJ, Article 118.
9 US Army Field Manual, The Law of Land Warfare, Number 27-10, 1956.
10 Ibid., paragraph 509a.
11 Ibid., paragraph 509b.
12 Herbert C Kelman and V Lee Hamilton, Crimes of Obedience, Yale University Press, 1989, p. 53.
13 Fight it Right – Model Manual on the Law of Armed Conflict for Armed Forces, International Committee for the Red Cross, 1999, paragraphs 2509 and 2510.
14 Major William H Parks, ‘Command Responsibility for War Crimes’, US Army Military Law Review, Vol. 62, 1973, p. 5.
15 Kelman and Hamilton, Crimes of Obedience, p. 72.
16 M Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Martinus Nijhoff Publishers, 1992, p. 373.
17 Kelman and Hamilton, Crimes of Obedience, p. 72.
18 Reichsgesetzblatt, 1926, Article 47. This statement was drawn from the opening speech of the chief prosecutor at the Nuremberg War Crimes Trials, 11 November 1945. See The International Military Tribunal for Germany, Contents of The Nuremberg Trials Collection <http://avalon.law.yale.edu/subject_menus/imt.asp >.
19 Kelman and Hamilton, Crimes of Obedience, p. 73.
20 Article 33(1)(b) Rome Statute.
21 Article 33(1)(c), Rome Statute.
22 Article 33(2), Rome Statute.
23 The five acts are: killing members of a national, ethnical, racial or religious group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group. Article 6, Rome Statute.
24 Article 7, Rome Statute.
25 Article 7(1)(k), Rome Statute.
26 Article 8, Rome Statute.
27 Code of Conduct for Combatants, International Committee for the Red Cross, 1998.
28 General George Patton, 1946, quote taken from Australian Red Cross International Humanitarian Law Instructors’ Course Training Manual, 1999.
29 Lyal S Sunga, Individual Responsibility in International Law for Serious Human Rights Violations, Martinus Nijhoff Publications, 1992, p. 18.
30 Cherif Bassiouni, Crimes Against Humanity, p. 416.
31 Ibid., p. 417.
32 Cherif Bassiouni, Crimes Against Humanity, p. 420.
33 Ibid., p. 421.
34 See Britannica Online, <http://www.eb.com.au/warcrime>.
35 This was the term applied to lower level trials.
36 The complete sentencing provisions of the Treaty of Versailles are detailed at: <http://avalon.law.yale.edu/imt/partvii.asp>.
37 Cherif Bassiouni, Crimes Against Humanity, p. 422.
38 Sunga, Individual Responsibility in International Law, p. 23.
39 The International Military Tribunal for Germany: Charter of the International Military Tribunal, <http://avalon.law.yale.edu/imt/imtconst.asp>, Article 8.
40 Microsoft Encarta98 Encyclopaedia, ‘War Crimes Trials’.
41 The International Military Tribunal for Germany: Charter of the International Military Tribunal.
42 Ibid.
43 See US Supreme Court, Hirota v. MacArthur, 338 U.S. 197 (1949) <http://supreme.justia.com/us/338/197/case.html>
44 See <http://its2.ocs.lsu.edu/guests/wwwlawl/human/warcrime.htm>.
45 ‘The Tokyo War Crimes Trials (1946–1948)’, The American Experience, <http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX101.html>.
46 Henry Dunant Institute, International Dimensions of Humanitarian Law, Martinus Nijhoff Publishers, 1988, p. 288.
47 Kelman and Hamilton, Crimes of Obedience, pp. 1–4.
48 US Army FM 27-10, issued 18 July 1956.
49 Ibid., pp. 10–12.
50 For more detail, see Doug Linder, ‘An Introduction to the My Lai Courts-Martial’, <http://www.law.umkc.edu/faculty/projects/ftrials/mylai/Myl_intro.html>.
51 Specialist Paul Meadlo was a machine-gunner in Calley’s platoon. Meadlo ‘broke down’ after the massacre, crying and openly arguing with Calley.
52 Kelman and Hamilton, Crimes of Obedience, p. 7.
53 Ibid., p. 8.
54 Ibid.
55 Ibid., p. 75.
56 Cherif Bassiouni, Crimes Against Humanity, p. 438.
57 Michael Kelly, Restoring and Maintaining Order in Complex Peace Operations, Kluwer Books, The Hague, 1999, p. 48.
58 See ‘Updated Statute of the International Criminal Tribunal for the Former Yugoslavia’, <http://www.un.org/icty/legaldoc-e/basic/statut/stat11-2004.htm>.
59 Ibid.
60 For more detail, see the Internet site of the International Criminal Tribunal for Rwanda, <http://www.ictr.org>.
61 Ibid.
62 Helen Durham and Timothy L H McCormack, The Changing Face of Conflict and the Efficacy of International Law, Kluwer Law International, The Hague, 1999, p. 190.
63 Australian Red Cross International Humanitarian Law Instructors’ Course Training Manual, 1999, Module 4.
