Living Up to Rules: When Should Soldiers (and Others?) Disobey orders?
Martha Minow
In 1944, Raul Wallenberg sent this message SS Commander General August Schmidthuber: I will make sure that you will be charged and hanged as a war criminal if you follow Adolf Eichmann’s order and direct the massacre of the nearly 100,000 Jews remaining in the Budapest Central Ghetto. Today we remember and honor Raul Wallenberg for this and countless other acts of courage that directly saved thousands of lives during the Holocaust. A man then in his early 30s, Wallenberg used delay, persuasion, threats, bribes, and his invented “protective passes”—to save a large remnant of Hungarian Jewry. Is message to General Schmidthuber remarkably worked; the Jews in the Budapest Ghetto survived. As Irwin Cotler observed in his address marking the opening of an exhibit on the life and work of Wallenberg, his example and his memory teach us that “Neutrality and indifference by individuals or neutrality and indifference by state must be rejected.”
Wallenberg disappeared and died, probably murdered, in Soviet custody. His personal sacrifice was extraordinary. How many of us would give our life to save strangers in a strange land? For a moment, though, let’s consider the response of General Schmidthuber: what did it take for him to halt the planned massacre—sufficient fear for his own life? The reminder of the wrongness of the planned massacre? Assuming he was following direct or indirect orders from Hitler, why did he not think—should I ever face trial, I will just say that I was following orders?
One legacy often traced to the Nuremberg Trials, held by the Allies after World War II, and marked by a 60th anniversary last year, is the rejection of the “I-was-just-following-orders” defense to charges of military atrocity and human rights violations. Nuremberg’s International Military Tribunal in its landmark criminal trials of German leaders on charges of war crimes, genocide, or crimes against humanity rejected this “superior orders” defense and ruled that responsibility runs to the individual. No one can be excused from responsibility for these most serious offenses on the grounds that he or she was following superior orders.
The Nazi period in Germany exposed better than any other historical experience how untenable it would be to embrace absolute obedience in all circumstances. The ostensibly civilian legal system wrested by Adolf Hitler from the Weimer Republic adopted a conception of the leader-state, making all of law the command of the leader, and enabling every single other person in the society to claim they were following orders. Rejecting the defense of “superior orders” thus became especially urgent if anyone would be held responsible in a regime that officially made the orders of one man, Adolf Hitler, the supreme law of the land. This would be true in any hierarchical society. Orders that violate the international consensus of acceptable conduct even in wartime should not shield soldiers from criminal culpability.
That is what I thought the Nuremberg Tribunal established, but as I will indicate, the reality of the rule both at Nuremberg and since is more complicated. Those complications reflect Cold War struggles and national self-interest. Yet even if we were free of political preoccupations, devising a workable rule about superior orders would be very difficult. Several fields in psychology underscore obstacles to a workable rule teaching both military obedience and resistance to illegal orders. The stress of war and the special problems posed by the war on terror accentuate these obstacles. My project explores the components of a workable rule and effective training while addressing how the problem of responsibility must be distributed, not placed only on the head of the individual soldiers.
Here is the central difficulty: Telling soldiers that they face punishment, unless they disobey illegal orders means telling them to think for themselves, and question authority. Taken to an extreme, directives to “think for yourself” and “question authority” would disturb the command structure and practice of drilled obedience in the military. As one military expert has explained,
During military operations decisions, actions and instructions often have to be instantaneous and do not allow time for discussion or attention by committees. It is vital to the cohesion and control of a military fore in dangerous and intolerable circumstances that commanders should be able to give orders and expect their subordinates to carry them out.
All of us are often in a position where we are expected to obey laws, directives from a boss, assignments from teachers or clients, dress codes or the traffic directive of police officers (especially given the frequent repairs of Cambridge roads). Even for civilians, individual thought and resistance jeopardizes the order sought by official rules and the rule of law itself. Yet the soldier, even in modern, complex operations, is expected more than most of us to follow commands and obey superiors.
Perhaps the other group of people situated most similarly to soldiers in this respect—you may be surprised by this--is children. Like soldiers, children are legally and practically placed under the supervision of others. Like soldiers, children are both expected and trained to obey and to follow the direction of parents, teachers, and other adults. Even so, there are explicit occasions when we instruct children, just as we instruct soldiers, to resist directives because they violate a higher norm. One quick example: we teach children as young as preschoolers that they can and should resist an adult, even a parent or relative, who wants to sexually abuse, or, indeed, touch them in an unwelcome way.
Of course, unlike the soldier who faces an illegal order, children typically confront problems with obedience where the key risk is to their own well-being or rights rather than to the safety and very lives of others. Yet there is a particularly chilling conjunction between soldiers and children posted by the escalating recruitment of children by armed groups in wars, armed conflicts other than war, and terrorist activities. One commander explains the recruitment of children is due in part to the fact that they “are more obedient, do not question orders and are easier to manipulate than adult soldiers.”
I mean here to explore how and when living up to rules means not doing just what is easy or expected or even commanded, but doing the right thing. That means, indeed, that sometimes we should disobey even a direct order, and we should teach others to do the same. That requires strength and independence to resist commands and peer pressure. Indeed, peer pressure is one of the key mechanisms through which obedience works, and developing a strong enough sense of self and beliefs to stand up for what is right often means risking disapproval from peers. How can we expect people to develop the clear sightedness to know an illegal order when you see one and the practice in resisting authority –and group pressure – when we also expect people generally to respect and conform to authority? There is an unavoidable tension between the conformity and independence. Conformity permits order but also risks group think and even mass atrocity, while independence promotes resistance to atrocity but risks disorder and inefficiency.
Addressing this problem is essential if atrocities during wartime are to be prevented. The authorization for massacres and abuse and dehumanization of those victimized may come from military and civilian leaders, but these forces cannot produce atrocities unless front-line soldiers and their immediate commanders commit them instead of asserting their own moral judgments and actions. But how can they be encouraged to remain individual moral actors and judges, when they are also expected to obey orders and military discipline---and indeed face punishment if they do not? This is a problem at the intersection of law, morality, psychology, and education, and as you will see, I have more questions than answers. I will consider what makes the topic important, now; what is the scope of the superior orders defense today, how research in psychology illuminate what is challenging in devising the rule about superior orders, and what would it take to train soldiers to obey legal orders but disobey illegal ones.
I have come to one conclusion: this is a vital topic that you should think about. The problem of knowing when to obey and when to disobey orders, I suggest, is central to preventing atrocities, but there is no easy answer.
II. Why Talk About This Now?
Of course, knowing when to disobey the law is a classic problem in Western philosophy, the subject of enduring plays and texts, from Plato’s Socrates to Denzel Washington’s “Crimson Tide.” It is also a wonderful problem for a teacher of lawyers. One of the most frequently cited recent articles focusing on “superior orders” actually addresses the situation of lawyers for large corporations, as in the Enron scandal. The corporation’s Chief Financial officer, Andrew Fastow, initially claimed he was following the orders of chief executives Jeffrey Skilling and Kenneth Lay in devising illicit profit-making schemes that ultimately led him to plead guilty and testify against his former bosses. How do and should we instruct students to follow the rules, but also learn to distinguish good ones and bad ones? But I come to this problem at this moment because of real concerns about the situation in which we are placing our soldiers, in the midst of the war on terror.
At this moment, U.S. troops can fairly object that in many of their operations, they do not even know what legal framework applies. After the public learned that lawyers for the President concluded that the Geneva Conventions do not protect members of the al Qaeda network, the Taliban militia, or persons in detention suspected of these memberships, and Secretary of Defense Donald Rumsfeld announced that prisoners at Guantanamo Bay would not be viewed as prisoners of war, Under these circumstances, what rules do apply? At best, such uncertainty exposes the soldiers to the risk of punishment after they engage in conduct that turns out to violate the laws that a tribunal applies after the fact. At worst, uncertainty about the legal status of enemy combatants, putative terrorists, or civilians who might be associating with terrorists actually invites soldiers to commit abuses and atrocities in a climate of fear and disorder.
I believe it is the duty of those who hold higher authority to articulate and legitimate the rules governing war, armed conflict, or criminal law enforcement. One military law expert argued that the law must protect the soldier who is risking his life: “In return for [his] unswerving obedience the solider needs the protection of the law so that he does not afterwards risk his neck for having obeyed an order, which later turns out to be unlawful.” If this means the soldier is never liable, I disagree; responsibility must run to the individual. But if it means that the national interpretation of the law of war in its content and form must show fidelity with the reasons why a soldier would risk his or her life, then I agree. We owe the soldier clarity about the law that governs and adherence to the principles to which the nation stands. The current free-fall in legality concerning the conduct of detentions and interrogations is a subject for another day, though it will resurface here.
Sorting out good lawful orders from unlawful ones is difficult enough even when the overarching legal framework is known. After a training exercise, one U.S. army officer not long ago commented, “I know that if I ever go to war again, the first person I’m taking is my lawyer.” Odd as it may sound, this wasn’t crazy. The rules of war have become very complicated, and even in this one area—the scope for a defense against war crimes or court martial because of superior orders—it is difficult for anyone who is not a lawyer to know and understand the rules.
Even if we are clear about how to state the norm accurately, it remains a challenge for anyone to state the law in terms of a specific guide to distinguish legal and illegal conduct. But imagine doing so in the midst of the tension and anxiety of armed conflict other than war, without clear rules of the game. And add the boredom and anxiety of waiting for violent eruptions. And then imagine that you are 21, or 19, trying to please your superiors, or get along with your peers—or impress your boyfriend. How, then, do you come to know whether to follow orders or conscience, or how to treat suspected terrorists, or even how to hear your conscience while guarding suspected terrorists?
I come to this subject in part after watching the situation of Private Lynndie England. She is the private in the U.S. Army reserves who became the public face of prisoner abuse in the Abu Ghraib prison. She notoriously posed with naked Iraqi prisoners, holding one by a leash while dangling a cigarette from her smiling mouth, and pointing at the genitals of naked, hooded detainees. She should have known better.
The story gets worse. She and her lawyers maintained that she was following orders to pose for the photos. Three months after the incident, during an investigation, England herself said that Graner directed her to pose with the leash. When asked if she was a willing participant, she did not say she objected to it. Then her lawyers tried to negotiate a plea bargain: she pleaded guilty in exchange for a reduced sentence. Yet Specialist Charles Graner, himself serving 10 years for his role in the scandal, and England’s boyfriend at the time, testified that England was following his orders, and that the photos were taken to document a legitimate exercise. (It’s noteworthy that Graner is serving the longest sentence of anyone charged with detainee abuse even when charged with murder; observers say it’s difficult to secure convictions because of sympathy for soldiers serving during wartime, and operating under ambiguous and shifting regulations). Military judge Colonel James Pohl responded by throwing out Private England’s plea bargain, because as he put it, “If you don’t believe you were guilty, doing what Graner told you, then you can’t plead guilty.”
So rather than plea bargain, England went to trial. There, the witnesses disagreed about whether Graner had directed her to pose with the detainees. England’s lawyer converted the “just following orders” claim into a psychological defense, and argued for acquittal on the grounds that England has “overly compliant personality” and fell under the influence of Specialist Charles Graner. The prosecutor countered that Private England was an enthusiastic participant. “What solider wouldn’t know that that’s illegal?” he said, pointing at her photographed grinning face as she jeered at the naked prisoner.
Last September, a jury of five military officers convicted England of conspiracy and maltreatment of prisoners. Her defense counsel commented, “The entire case, what this has always been about, is authority…Private first class England’s blind compliance toward authority and her lack of authority in any context.” Private England is the last of nine military police and military intelligence reservists who have either been found guilty or accepted plea bargains following the expose of abuses at the prison in 2003. Yet investigative reports by both the military and by outside observers suggest that the abuses did indeed follow orders: whether they were general directives to demean the prisoners—or else decisions to exercise such loose oversight that young, anxious reservists would be predictably allowed to lose self-control.
England should not be the scapegoat; there are many others still free who bear responsibility for the conduct there. Only eight people have faced court martial and conviction related to the abuse scandal; the most senior official involved—the commander of the prison—received only a demotion in rank. Pursuing the chain of command—and those responsible for the absence of clear legal rules altogether-- is crucial if we really care about accountability, the rule of law, and deterring gross misconduct in the war against terror. Yet following the exposure of abuses in Abu Grhaib, none of the investigations aimed higher than General Sanchez, toward the Pentagon; none of the inquiries examined the role of the CIA or civilian authorities, and apparently no investigations have been launched to assess directives to U.S. forces in Guantanamo Bay. Command responsibility—the liability of those in command for violations committed by their soldiers—is as important as holding individual soldiers responsible for following illegal orders.
But it is also right to punish Lynndie England. Soldiers in Abu Ghraib, soldiers in Nazi Germany, soldiers anywhere must retain their conscience even if it means at times disobeying. They must do what is right, not simply what is promised or ordered. Don’t get me wrong; as bad as the conduct glimpsed in the photos from Abu Ghraib, it is not genocide or crimes against humanity. But the soldiers who are trained to kill also must be trained to know and remember the boundary between permissible and impermissible conduct. Even if the national laws are wrong, the individual soldier must be responsible; that is the lesson of the Nuremberg trials—or so I thought, when I started this project.
III. Superior Orders and the Nuremberg Trials
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.
Agreement for the prosecution and Punishment of the Major War Criminals of the European Axis, with the Charter of the International Military Tribunal attached, Article 8, 82 U.N.T.S. 279 (signed Aug. 8, 1945).
The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires.
Article 6(4), Statute of the Special Court for Sierra Leone
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.
ICC Statute, Art. 33 (“Superior Orders and Prescription of Law).
It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
Manual for Courts Martial, United States (2005 ed), Rule 916
The starting place for modern discussions is its treatment in the Nuremberg Tribunal, where the very project of applying law to war crimes involved constant balancing ideals and practical concerns. While World War II still raged, Allied leaders began to talk about an international tribunal to be held after the war—perhaps in hopes of deterring further atrocities, and perhaps to raise the morale of the troops. In 1943, leaders of 17 nations met as part of the United Nations Commission for the Investigation of War Crimes, and began to debate the rules and structures for such trials—including the question of whether “following orders” should be permitted as a defense. The United States two years later drew up a draft proposal for an international military tribunal to try major German war criminals. The proposal included a provision rejecting an absolute defense of “acting pursuant to an order of a superior or government sanction,” but permitting evidence of superior orders or government sanction in a defense or mitigation of punishment. That draft influenced the Charter of the International Military Tribunal, the document governing the Nuremberg trials, and it went even further in restricting use of “superior orders”. Its article 8 stated:
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.
Thus, even as formally articulated, following superior orders did not disappear from considerations before the Tribunal, but simply shifted to a factor in the level of punishment to be assigned. Despite the popular understanding that the Nuremberg Tribunal flatly rejected the defense of “following orders,” even the charter for the International Military Tribunal preserved a role for superior orders in considering whether to mitigate punishment.
Although the Charter expressly rejected use of superior orders as a defense, counsel for the defendants nonetheless asserted it repeatedly and did not reserve it as a claim for mitigating liability. Thus, lawyers for Field Marshal Wilhelm Keitel and Colonel General Alfred Jodl argued that the defendants were following orders and thus should have no reduced criminal liability (they also argued for mitigation). The Tribunal rejected explicitly all of these claims. The judges announced that the law of all nations rejected a defense based on superior orders to kill or torture in violation of international law.
Some judges at Nuremberg want to go further and make the question whether the soldier has a “moral choice”—a personal capacity to act differently—or would he instead face a firing squad or risk his family’s safety if he disobeys an order.
Subsequent trials under the individual authority of the four nations occupying Germany after the war proceeded along similar lines. In the Einsatsgruppen Case, the United States pursued elite military squads who followed the regular German army into the Soviet Union and Poland, rounded up civilians, and killed them. Finding all 24 of the defendants guilty of war crimes, that tribunal wrote an opinion acknowledging that a military soldier’s first duty is to obey, but nonetheless rejected the defense of superior orders and called for independent thinking by the soldier. The judge explained:
The obedience of a solider is not the obedience of an automaton. A solider is a reasoning agent….The fact that a solider may not, without incurring unfavorable consequences, refuse to drill, salute, exercise, reconnoiter, and even go into battle, does not mean that he must fulfill every demand put to him…The subordinate is bound only to obey the lawful orders of his superior and if he accepts a criminal order and executes it with malice of his own, he may not plead superior orders in mitigation of his offense.
Here the Tribunal had the benefit of precedent in Imperial Germany to the same effect. Nazi Propaganda Minister Joseph Goebbels had publicly embraced what he deemed to be international law on the subject when he ridiculed the plea of superior orders proffered by captured Allied pilots in 1944.
In rejecting the superior orders defense, these decisions tried to establish that anyone, anywhere, should know that rounding up, abusing, and killing civilians is wrong. It is not permitted simply because a political or military leader told you to do it. The Nuremberg Tribunal rejected asserted defenses and claimed mitigation due to “superior orders,”
After the Nuremberg trials, international law did not fully reject the superior orders defense. “Following superior orders” is not an absolute defense, but it has not disappeared nor is it quite as limited as popular summaries of the Nuremberg legacies imply. The Cold War hampered not only efforts to establish a permanent international criminal court but even to codify the rule and different nations began to express doubts about the wisdom of eliminating the defense. Perhaps because it was the Soviets who proposed in the Geneva Conventions negotiations the elimination of a superior orders defense to genocide, the majority at the negotiating table rejected the proposal. The cited reason that combatants would then face the impossible choice between complying with commands or risking court martial—with the result of uncertainty, inefficiency, and insubordination. Despite long meetings with expert committees, the United Nations could not secure agreement on proposed codifications of the laws of war, peace, and security, and efforts to formulate principles from Nuremberg failed. Nor could the International Red Cross summon sufficient support to include the superior orders provision in the 1949 Geneva Conventions or the 1977 follow-up Protocol. Not only Cold War tensions contributed to the stalemate. In addition, national representatives disagreed over whether soldiers should ever be expected to think for themselves and decide whether or not to obey orders.
A dispute about its continuing status and scope occupies legal scholars and lawyers. Some experts conclude that this failure by any international group to adopt a formal statement rejecting the defense of superior orders means that the defense is now available. One scholar goes further and concludes that defense counsel in war crimes trials who do not assert a defense of superior orders would be “professionally derelict.” He argues is that, by failing explicitly to codify the Nuremberg norm that “just following orders is no defense,” international law has rejected it. This view would review an old and classic conception, advanced by Cicero and Thomas Hobbes, that the law should view soldiers’ actions as that of the superior, not the subordinate who obeys authority.
As I read the current authorities, this is a minority view. Most experts emphasize that even though efforts to codify the rejection of the superior orders defense failed, the custom emerging in international law eliminates the defense in the face of orders that are manifestly illegal—but soldiers may still defend themselves for following orders that are not so clearly illegal. Some evidence for this view can be found in the fact that the United Nations Security Council used the Nuremberg-type rejection of superior orders when it authorized the ad hoc International Criminal Tribunal for the former Yugoslavia. That tribunal has in fact applied this rule to refuse a defense of superior orders and ruled that the sheer fact of superior orders is neither a defense nor sufficient evidence of duress to serve as a defense. Chief Judge Antonio Cassesse went further in a separate and dissenting opinion, maintaining that a soldier has a duty to disobey an order that is manifestly illegal. Language refusing the defense but permitting superior orders to be used as mitigation is included in the authorization for the ad hoc International Criminal Tribunal for Rwanda, the tribunal for East Timor, the Special Court for Sierra Leone, and the Statute of the Iraqi Special Tribunal, signed by the Administrator of the Coalition Provision authority. Each use the same approach denying a defense based on superior orders but permitting mitigation if justice so requires.
Yet there is enough ambiguity about whether these developments forbid a superior orders defense to lead one recent scholar to propose that the United States permit detainees in Guantanamo to assert the superior orders defense. Further, the treaty authorizing the International Criminal Court departs from the other recent statements by permitting the defense where the orders was not manifestly unlawful and the soldier did not know the order was unlawful. A soldier charged with war crimes—though not genocide or crimes against humanity—can defend himself from criminal liability if he can show three elements: he is obliged to follow the orders to commit the war crimes, and the solider does not know the orders are illegal and the orders are not on their face manifestly illegal. Moreover, though this seems excessively literal, a soldier charged with war crimes might be able to assert such a defense if the order in question is not phrased expressly as an “order to commit genocide” or an “order to commit crimes against humanity.”
Several countries committed to the ICC have already amended their domestic law to match the ICC standard on superior orders. If many come to do that, this could change the status of the defense in customary international law, for it would show a shift in custom. Yet the United States has not waited for developments in customary international law to craft our own alternative to the Nuremberg principle about superior orders. The United States Manual for courts martial currently permits the defense as follows:
“It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” And the discussion explains: “An act performed pursuant to an unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have known it to be unlawful.” This provision not only permits superior orders as a defense but does so when a person of ordinary sense and understanding would not realize that the order is unlawful. The standard is pegged to the person of ordinary sense and understanding, neither to an objective test of illegality nor to an aspirational level of knowledge higher than the ordinary.
The Canadian version permits the defense except if the order was manifestly unlawful to a reasonable soldier under the circumstances. It defines manifest illegality as “obviously and flagrantly wrong.” Absent that, the following orders can supply a defense in Canada.
These variations in national statements of the norm and the variations in the international tribunal norms indicate some of the ambiguity and variety, making the Nuremberg legacy less than clear. In addition, commentators have offered further extensions, such as this version: “obedience to superior orders is not a defense under customary international law to an international crime when the order is manifestly illegal but “[i]f the subordinate is coerced or compelled to carry out the order, the norms for the defense of coercion (compulsion) should apply” as mitigation.
IV. Moral Development and Psychological Theories: Why Resistence to Orders is Difficult
Lacking a single universal international norm about the defense of superior orders, we have these variations: it may never be a defense but instead a grounds for mitigation; it may be a defense but only if the person did not know it was illegal and it was not manifestly illegal; or it may be a defense as long as a person of ordinary sense and understanding would not know that the order is illegal. Taken together, these articulations imply that there can exist a set of orders that lies between the order that is manifestly illegal and the order that could be illegal, but not be manifestly so, and this kind of order could indeed be the basis for a defense against charges of atrocity (except in the International Criminal Court if the charges are genocide or crimes against humanity).
Frankly, taking any versions of the rule would still pose serious difficulties of comprehension and compliance. Perhaps common sense alone is enough to raise doubts about whether we can plausibly expect any individual to operate under a rule that requires obedience but also expects disobedience on a very limited set of circumstances. The soldier is told simultaneously: obey all orders and don’t obey a manifestly illegal one; you are responsible for obeying a manifestly illegal order but you also are responsible for disobeying a legal order. But you will not face the full brunt of punishment if you did not know it was illegal and other people of ordinary intelligence and knowledge did not know that either. Thus, you should take responsibility unless you cannot; you should obey all orders unless you think you should not. Or take the potential focus on coercion. How are people to understand the rule that punishes compliance with manifestly illegal orders but excuses such compliance if it was due to coercion? You should resist an illegal order unless you cannot.
Beyond common sense objections, the difficulties with the limited superior orders defense are a catalogue of the “best hits” from the disciplines of moral psychology, social psychology, and cognitive psychology. I will touch on five insights from these fields that help define the challenge of training soldiers to prevent atrocity.
A. Cognitive dissonance
The limited superior orders defense summons competing and indeed contradictory beliefs about authority. This is the classic set-up for what psychologists call cognitive dissonance. When we are in the presence of two conflicting messages, over time, we drive one out of view because the dissonance itself is too difficult to bear. As a result, we may try to change one or more of the conflicting beliefs, opinions, or behaviors to reduce the dissonance; we may look for new information to reconcile the conflicting views. Given the situation of hierarchical command, obedience to the immediate superior is the view likely to prevail. In any case, many people will find it hard to hold onto both the view that each order from a commander deserves respect and obedience, and the view that the superior’s orders can be grossly illegal and require disobedience.
B. Stages of Moral Development
Lawrence Kohlberg researched how moral reasoning shifts over the course of human development. Based on an assessment tool, used to catalogue the methods and sophistication of individuals based on their responses to descriptions of hypothetical moral dilemmas, Kohlberg articulated six stages of moral development. These stages can illuminate how different people, with different degrees of sophistication in moral reasoning, would approach the conflict between following superior military orders and following conscience or moral conceptions. Kohlberg’s work suggests that the moral reasoning of most adolescents and many adults is characterized by commitment to following conventions and authority. They will not be likely to articulate a duty to resist manifestly illegal orders.
Kohlberg built on Jean Piaget’s theories of human development, from childhood through adulthood, and from concrete to abstract thinking. Kohlberg studied how individuals over the course of their lives think in moral terms. He identified six stages of human development in thinking about moral issues. Most people, he argued, progress at least through the first several stages and very few reach the highest stage of development.
Kohlberg and others working with him found that young children start by thinking of themselves rather selfishly, and not in terms of membership in society. Young children thus talk about the right thing to do in terms of obedience: they think they should do the right thing in order to avoid punishment. When they advance a bit, they move to thinking in terms of their own self-interest but understanding that in order to get what they want, they may need to bargain or do things in exchange. Now the child does not simply equate punishment with wrongfulness but rather views punishment as a risk.
Most teenagers attain what Kohlberg called the “conventional” mode: they think about doing the right thing in order to develop and maintain good interpersonal relationships, and in order to be a “good girl” or “good boy.” When asked what people should do in response to particular moral dilemmas, at this stage a person tends to say that everyone should conform to prevailing laws or norms. A more advanced version of this emerges for many by the end of high school. These individuals justify conformity in light of larger social purposes, like the need to maintain social order.
Many people progress and come to use more abstract thinking about here the need to coordinated people with different interests and needs, but typically they use more complex bases to justify adherence to collective rules and respect for the collective arrangements specified by a constitution, including the respect accorded to individual rights as speech and autonomy. People who reason this way may locate the demands of morality—and they may call for improving society generally to incorporate moral views into laws.
Finally, a limited number of people (Mahatma Ghandi, and as it turns out, Lawrence Kohlberg) develop beyond even this advanced stage to offer complicated assessments of rights and wrong, based on universal principles, not whim or even merely national norms. Kohlberg noted how Mahatma Gandhi’s thought took this advanced form.
There is a startling convergence between Kohlberg’s language and the problem for the soldier who is instructed both to follow orders and to remember that it is no defense to genocide or war crimes to say you were following orders. Superficially, it may seem that Kohlberg’s work suggests that over the course of one’s lifetime, we each move through the phases of following orders and conforming to the conduct of other soldiers, to thinking independently about what morality requires and acting on your own conscience.
Yet this dilemma is, placed in Kohlberg’s terms, is more complicated. For even the child would attend to the risk of punishment if he follows an order he can be punished for following orders. For those soldiers—perhaps most soldiers—who think about moral conduct concerned primarily with the concern to maintain good interpersonal relationships, being a “good solider” or maintaining law and order, conformity will be the dominant mode. Many young people enter the military after high school—or these days, accept recruitment before they finish high school. They are likely to think these ways. I doubt that the priority for training should be to challenge their moral reasoning through consideration of abstract dilemmas in the hope that they will progress up Kohlberg’s stages toward more complex reasoning. More likely to actually pay off would be training that immerses the soldiers in detailed scenarios that they may confront so that they will recognize those patterns, and training that models for them steps to take to clarify orders that appear illegal and training that cultivates a peer culture committed to resisting rather than sliding into military atrocity.
A persistent shortcoming with Kohlberg’s theories, along with much work on moral reasoning, is the focus on cognition rather than action. What relationship, if any, does refined analysis of moral dilemmas bear to moral action and actual behavior? Before his academic work, Kohlberg smuggled Jews through the British blockade of Palestine during World War II, defying the law for what he saw as a higher norm. But it is not at all clear whether thinking about abstract moral dilemmas as his work directs leads others to action in pursuit of higher norms.
I
C. Studies of Obedience
To consider behavior, the controversial but influential studies of obedience by Stanley Milgram indicate the power of the social setting on how people actually behave. In the 1960s, Stanley Milgram conducted a now-famous laboratory experiments at Yale in order to study obedience. Actually, his designed controversial experiments specifically to examine the defense of “following orders” offered by criminal defendants at the World War II Nuremberg War Criminal trials.
Milgram set up a task in which the volunteer would play the role of a "teacher" who was to help a learner learn a list of words. The volunteer teachers were told to administer an electric shock, with increasing voltage, each time the learner made a mistake. These were not actual electric shocks, but the volunteers did not know that. The fictitious story given to these volunteer "teachers" was that the experiment was exploring effects of punishment (for incorrect responses) on learning behavior. The "teacher" was not aware that the "learner" in the study was actually an actor - - merely indicating discomfort as the "teacher" increased the electric shocks. An experimenter was in the booth with the "teacher," and would encourage the "teacher" to push the volt-delivering button when the "teacher" expressed reluctance. In fact, the experimenters would tell the "teachers" that they had no choice but to deliver the shocks.
The “experimenters” and the "learners" were confederates of the experimenter. But the "teachers" thought that they were actually delivering shocks and nonetheless, most went ahead. In his repeated runs of the experiment, more than 60 % of the teachers were willing to administer the maximum 450 voltages, in spite of the cries of pain and screams for mercy. No volunteer stopped before reaching what was marked as 300 volts. Some of the volunteers asked who was responsible for any harmful effects resulting from shocking the learner at such a high level. When the experimenter would answer that he assumed full responsibility, volunteers seemed to accept the response and continue to administer the “shocks,” even though some expressed great discomfort with it.
The study raised many questions about how the subjects could bring themselves to administer such heavy shocks, about the ethical issues in conducting such a study, about authority, including academic authority. Modified variations of the experiment later showed that the volunteers were impressed by the apparent authority and expertise of the experimenters, who wore white lab coats with advanced degrees hanging on
their walls and the letters Ph.D. after their names. Follow-up studies identified factors associated with increased obedience included perceived legitimacy of the authority figure, greater distance from the victim, closer supervision by the authority figure and the presence of people who modeled obedience.
These days, the Milgram study may be more famous for having ushered in rigorous restrictions on the use of human subjects in experiments, for the unhappiness and even trauma experienced by some of the subjects in Milgram’s work triggered a process of self-examination about the methods used by experimenters and greater regulation by university and hospital leadership.
Thus, taken together, Milgram’s and Kohlberg’s findings suggest that many or eve most people will respond to the social situation in which they face an authority figure giving orders with obedience, at least until, in Kohlberg’s terms, the highest stages of moral reasoning. Neither set of findings reveal what kind of education or preparation would it take to resist the conformity and obedience showed in Milgram’s experiments.
Kohlberg controversially argued that the stages he identified are both universal, in the sense of cross-cultural, and invariable, in the sense that every individual moves through each stage in the order listed until he or she stops somewhere on the path of development. His work was tellingly critiqued by Carol Gilligan for deeming universal the patterns of thought he found in white male college and graduate students, and for neglecting the complex moral reasoning that elevates contextual consideration of relationships. There may well be fruitful work to be done pushing that critique in the direction of assessing what happens to moral reasoning in the context of hierarchical or fear-inducing relationships.
Milgram’s work also received serious criticism not only regarding the ethics of the experiment, but also about whether the tendency to obey reflects an inevitable deference to authority or instead a response to particular features of the situation. Yet his work has had real influence, including on the U.S. military. His biographer Thomas Blass describes how “Milgram's research and its implications are discussed in two mandatory psychology courses at the U.S. Military Academy.” The head of the academy's department of behavioral sciences and leadership wrote in 1985, "One of the desired outcomes of this is that our future military leaders will be fully cognizant not only of their authority but also of their responsibility to make decisions that are well considered and morally sound."
Milgram’s work thus has supported educational interventions on the premise that self-awareness for both authority figures and those who follow them can mitigate the risk of unswerving obedience to illegal commands. Kohlberg also prescribed education in light of his research. He developed materials for a form of moral education that would push people to experience limitations of their current stage by posing dilemmas that would prompt them to think hard enough even to rethink their premises and move to more complex levels of analysis.
Yet research has not established that educational programs will enhance not only the complexity of the students’ moral reasoning but also the likelihood that the student will behave differently—for example, will resist illegal authority. It is not clear that teaching a dilemma, like the dilemma over whether and when a soldier should follow or disobey orders, will prompt a transition to more complex thought. Nor is it clear that complex thought translates into action. But this excursion into long-standing research paradigms offers a warning: young people recruited into the military are likely to be predisposed to follow orders and conform to prevailing rules.
D. Conformity
One more set of insights relevant to the obeying orders problem deals with the dynamics of group conformity and social cohesion. Psychologist Solomon Asch showed that an individual is likely to go along with the statements of others about the perceived length of lines on a card; 74% of subjects in the experiment conformed at least once even though that meant suppressing their knowledge of an obvious fact. Yet more recent efforts to replicate the study fail to do so. That has led psychologists to conclude that conformity is affected by culture, child-rearing, and other factors rather than representing a stable feature of human interactions.
Yet, with direct relevance to the issues at hand, historian Christopher Brown studied a battalion of German policemen pressed into service in World War II. Their battalion was responsible for killing 38,000 Jews. Browning studied interviews conducted after the war with the men who mainly returned to their homes and ordinary lives conducted after the war. On the first day of the mass killing, the commander offered allowed members of the battalion to opt out of the killing; a handful did at first, and more over the course of the day, but no more than 20 percent. Browning concluded that group conformity and the desire not to stand out from the crowd helped to explain this for the records on the men also showed that they did not for the most part have anti-Semitic views at the start of the operation. Many over time overcame an initial reluctance to participate in the mass slaughter.
.
E. Heuristics: baseline/reference
Finally another body of psychological research suggests that the specific formulation of the rule about superior orders is likely to affect how it is perceived and what judgments it generates. Research into heuristics and bias suggests that people overemphasize an “anchor” or starting point when making judgments involving a comparison between that starting point and something else; the anchor seems to affect attention and get the person ready for certain conclusions rather than others. Similarly, research on reference points indicates that the selected reference point affects perceptions and the way people assign value to options. Hence, the starting point that treats superior orders as presumptively legal is going to affect people differently that the version stating superior orders as no defense except under limited circumstances. Training that states the superior orders rule to emphasize illegal orders as a focal point will call for disobedience with more salience the statement that emphasizes that in the ordinary case, superior orders are due deference. Or at least these would be concerns raised by research on the effect of heuristics.
Taken all together, these five sources of psychological insight generate real doubts about the efficacy of a rule limiting the availability of a superior orders defense do to charges of atrocities. The problems of cognitive dissonance about respecting and questioning superiors orders, the prevalence of conventional thinking, the effects of situations on people’s willingness to take orders, including the presence in the military context of the situational features more likely to promote obedience, the potential power in some settings of social conformity, and the influence of the point of reference used in a rule on how it is conceived and followed each point to real problems. These are problems suggest obstacles to effectively teaching and implementing that rule. So what are the prospects for educating soldiers?
IV. Training Soldiers
Education is the prescription coming from law to the problem posed by soldiers following orders. Education is not merely an appealing solution, though; the another legacy of the Nuremberg trials is the obligation to teach soldiers the laws of war, and obligation enacted in the Geneva Conventions, embraced by over 100 nations after World War II. Besides adopting norms governing the treatment of combatants, prisoners of war, and civilians during war time; the nations signing these Conventions also committed to teach military personnel the laws of war, which include rules about defense. Instruction seems the answer, though situations tug in opposite directions and any version of the rule is difficult to state and know.
As I have explored, insights from psychology indicate good reasons to think that a person placed in a subordinate position and instructed to obey presumptively legitimate authority will be likely to follow those orders even if they see them as wrong. Add to this the insecurity, fear, anxiety, and interpersonal dynamics experienced by young recruits, the peer pressure reinforced by training and troop organization, and ambiguity in the larger legal framework. What would make soldiers in these circumstances stand up for ethical commitments and resist orders to engage in abusive conduct?
The orders may be subtle and that makes training especially difficult. A superior within the U.S. military today would explicitly direct soldiers to “commit genocide” or “use torture” or “kill civilians.” But we can well imagine maneuvers engaging soldiers in acts that would amount to punishable acts under the Geneva Conventions, such as conspiracy to clear an area of a particular group—and bring out its destruction in whole or in part; detaining individuals without giving them the opportunities to challenge their confinement as called for prisoners of war, deploying interrogation techniques that cross, or transferring detainees to secret prisons where ill-treatment or torture may be underway. Indeed, we don’t need imagination. Two days ago, the New York Times reported that a senior Pentagon lawyer, Albert Mora, repeatedly advised the Bush administration that its policy on the coercive interrogation of terror suspects practices violated the law, came close to torture and could give rise to criminal prosecutions of those giving the orders.
Devising ways to prepare soldiers to deal with the orders problem, therefore, involves at least several challenges:
1) the teaching must translate instruction into something that affects behavior;
2) the teaching must anticipate the special problems arising under the stress and anxiety of war and violence;
3) the teaching must fine ways to prompt questioning, resistance and action despite the cultivation of obedience to military authority; and
4) the training preparation must recognize the trend toward decentralized authority in armed conflicts and the war against terrorism where directives take the form of objectives rather than orders—and responsibility for sorting out the lawfulness of conduct falls even more on the soldiers on the ground.
I have several suggestions. First, the focus on training has to be early and constant. I am not an expert in moral psychology under the “fog of war,” but I bet that ambiguity about what’s an illegal order and when should a soldier disobey an order is not only unfortunate, but dangerous. It’s too late to think it through when the crisis happens.
Elaine Scarry, a wide ranging scholar whose work has addressed torture, beauty, dreams, and military pilots gave an amazing lecture called, Thinking in an Emergency. Its key idea is a succinct rejoinder to its title: Thinking in an Emergency? You can’t. We don’t think in emergencies, so if thought matters, we have to do it ahead of time. To translate norms into guides for behavior, we need to think hard about how people learn, what they remember, and how incentives and disincentives in a situation operate.
Second, the rule that is taught does not have to track perfectly the rule that would be used to evaluate conduct at a court martial or a war crimes tribunal. The training can push soldiers to be more vigilant, in order to produce better results in practice and even try to steer clear of borderline cases. The insight about heuristics suggests that it would be worth considering stating the relevant rule in a way that emphasizes the duty to be vigilant rather than complacent about orders. The Canadian training practice tells solders to presume an order is legitimate unless it is blatantly illegitimate, but also includes a vivid picture of what would be illegal: opening fire on schoolchildren playing; the training also directs that all legal orders should be followed even if an individual perceives an order as unethical. This kind of summary is useful in its simplicity but it tilts against questioning an order to make sure it is legal. Another articulation of the rule could tilt in the other direction, to make it less likely that the soldier crosses the line into illegal conduct.
One way to deal with both the psychological heuristic problem and handling ambiguity over the rules is to create a presumptive duty to disobey orders that violate the law absent a reasonable mistake about the scope of the law. This is different from simply removing a defense of “following orders.” A duty to disobey illegal orders imposes an obligation on the soldier to be active in assessing the legality of orders and threatens punishment for failures to disobey an order that a reasonable person would understand to be illegal
Legal scholar Mark Osiel claims that the manifest illegality provision cashes out to just this. In his words, that prevailing test “imposes a broad duty to obey superior orders that is qualified by an equally bright-line duty to disobey orders to commit atrocities.” That makes the soldier obliged to comply with orders in the ambiguous area in the middle, where orders to commit abuses are not manifestly illegal. Osiel himself prefers a different rule, one that calls for obedience only to lawful orders, and punishes obedience to unlawful orders except if the soldier makes a reasonable mistake about the lawfulness of those orders. His rule would put individual soldiers on greater guard to be checking out the legality of orders in that zone of ambiguity. The effect, he argues, would generate more discussion and debate among groups of soldiers about what is the right thing to do. And, he claims, that in turn would push for more awareness by ordinary soldiers of their legal duties.
I do not agree with his proposal or with his prediction. First, if the line between legal and illegal orders is this ambiguous, I think that should be addressed and resolved directly by military authorities rather than indirectly by inviting soldiers to police the borderline cases. Second, if the problem is not ambiguity but instead the courage to dissent and act on conscience, soldiers will need direct and repeated training to cultivate conscience and dissent. It seems highly implausible that soldiers would react to greater liability for obeying orders whose legality is at issue by engaging in more debate among themselves. They would have to risk bucking peer disapproval. Third, it is far from clear that such debate would produce more resistance to illegal orders rather than more mutual reinforcement to follow orders. Fourth, rules ratcheting up the focus on potentially illegal orders is likely to generate fewer explicit orders altogether. Commanders would risk liability for command responsibility and they could well seek the deniability afforded by ambiguous orders.
All in all, what soldiers need is better ability to perceive and recognize illegal and immoral conduct—and repeated experiences integrating those perceptions into judgments about risks and operational effectiveness. Soldiers operate in contexts of fear and anxiety; they are not a debating society. To be fair, Osiel made his proposal before the current global situation, and he may well have had in mind peacekeeping operations and other maneuvers other than war, where soldiers have time on their hands. We have to think about soldiers now in Iraq and Guantanamo. Soldiers sent to these places fresh from boot camp or a prior tour of duty would be willing, able, or inclined to debate the legality of their commanding officer’s directives. ]
Third, soldiers need the drill in experiential learning so that they have reflexes to reject abusive action just as they have reflexes to shoulder a weapon. Some of this can come from immersing in hard case studies. Teaching cases is a good start; it’s not just because I am a law professor that I belief that the encounter with and debate over vivid factual descriptions helps to alert people to spot issues, and helps cultivate the ability to recognize problems in practice. I don’t think it is simply because I am a law professor that I think cases are better teaching tools than rules. Major Mark Martins of the Army Judge Advocate Corps shows in detail that soldiers cannot remember or use all the relevant abstract rules of war, and instead need schemas, or organized structures of patterned knowledge, repetitive practice, and ongoing learning grounded in real stressful situations and the mistakes real soldiers have made.
I have spent some time this year informally interviewing former and current soldiers, including some of our own students. When I talk with people who have served in the Israel Defense Force, it is striking how often they say they do not remember much, but they do remember the incident of the Black Flag. Now known as the "black flag" incident at Kfar Kassem, at the onset of the 1956 Sinai Campaign, Israeli authorities imposed a curfew on Arab villages in Israel. A border unit was assigned the task of enforcing the curfew which was set to begin while villagers were in the fields, tilling the land. During the preparatory briefing, a member of the force asked what would happen to those returning from the fields after the curfew was in effect. The commanding officer replied briefly: “God have mercy upon them.” Subordinate officers translated this comment into a directive to shoot anyone returning after the curfew. As a result, soldiers killed 56 innocent men, women and children returning from the fields. In subsequent trials arising from the incident, the Israeli courts concluded that an order to shoot curfew violators was blatantly unlawful, and those who followed such an order were to be court-martialed.
Even long after training and long after military service, veterans of the IDF remember the Black Flag incident. In fact, its history is well-known throughout the country. That suggests to me that vivid scenarios can have an enduring hold. The question remains: what lessons do and should soldiers take from such an example? They should think rather than assume that an ambiguous order means that they should kill civilians or engage in any other conduct that on its face looks illegal. They should know that in such an instance, they can question superiors without being viewed as insubordinate, and they should know that court martial or other sanctions follow from blindly following orders that are clearly illegal.
Fourth, teaching alone will be insufficient; there must be related changes in the organization, management, rewards, and punishments of military operations.
Ensuring access to legal advisors during planning and execution of operations is now a priority in many parts of the U.S. military. Lawyers currently help draft the Rules of Engagement for ground forces and the training materials. Training materials increasingly look like law school materials as they rely on detailed scenarios as material for honing the situational judgment of soldiers.
The law here becomes a tool for analysis and critical thinking rather than a set of commandments. As one commentator explained, the lawyer serving as a judge advocate is to give detailed advice and “to ensure that if the commander breaks the law, he is doing it intentionally.” Integrating law into the fabric of daily operations is an idea pushed by thoughtful figures within and outside of the military.
As one lasting effect of the response to the My Lai massacre, lawyers became much more directly involved in planning operations, in reviewing or even drafting the rules of engagement, and in shaping and participating in training programs with their credibility enhanced precisely due to their involvement in operations.
Discussion about the legality or justifiability of conduct is now threaded throughout the U.S. military training. This is, of course, consistent with military training around the world: cultivating of a sense of membership in a team, attachment to the virtues of loyalty and honor, and integration of physical, cognitive, and emotional learning characterize typical military training. Mark Osiel emphasizes that military training in the United States is more consistent with virtue ethics than rule-based morality, and he argues that the best way therefore to teach soldiers the scope of duties to obey and disobey orders is to attach the commitment to hew this line to the ideal of the good soldier. This approach de-emphasizes the focus on law and rules and to emphasize ethical sensitivity as part of the soldier’s character and practical reasoning.
It is unreasonable, indeed, far-fetched to expect every soldier such take on debate over the legality of orders as part of his or her daily job. For officers, and especially the platoon leader, closest to the ordinary solider, the U.S. military adopts this conception of active, thinking, ethical sensitivity specifically tuned into the legality of orders. Thus, the Army Field manual, foundation text of Army leadership for every officer, includes this provision:
A good leader executes the boss’s decision with energy and enthusiasm. The only exception to this principle is your duty to disobey illegal orders. This isn’t a privilege you can conveniently claim, but a duty you must perform. If you think an order is illegal, first be sure that you understand both the details of the order and its original intent. Seek clarifications from the person who gave the order. This takes moral courage, but the question will be straightforward: Did you really mean for me to … steal the part…submit a false report….shoot the prisoners? If the question is complex or time permits, consult legal counsel. However, if you must decide immediately—as may happen in the heat of combat – make the best judgment based on Army values, your experience, your previous study and reflection. You take a risk when you disobey an illegal order. It may be the most difficult decision you’ll ever make, but that’s what leaders do.
Integrating attention to the legality of orders is a central part of the training program used by the U.S. Marine Corps which asserts the goal of ensuring compliance with the spirit as well as the letter of the law.
The U.S. mi
This was presented as the Raul Wallenberg Human Rights Lecture, at McGill Law School, March 9, 2006. I am very grateful to Dean Nicholas Casirer, Professor Colleen Shepard, and members the Faculty of Law at McGill, and to the students and community who offered such an engaging discussions about the topics raised in this lecture. Earlier versions of the talk were delivered as the “chair lecture” when I receiving the Jeremiah Smith, Jr. Professorship, Harvard Law School, Feb. 22, 2006, and as the Laurence Kohlberg Lecture to the Association of Moral Education and Facing History and Ourselves/Harvard Facing History Conference, Nov. 4, 2005. I am grateful for comments from Larry Blum, Mary Casey, Lani Guinier, Daryl Levinson, Adam Strom, Margot Strom, Cass Sunstein, and Richard Weissbourd, and participants in presentations at the Boston College Law School, Harvard Law School, and Harvard J.F.K. School of Government Intervention Seminar.
Jeremiah Smith, Jr. Professor, Harvard Law School.
See Jewish Virtual Library, http://www.jewishvirtuallibrary.org/jsource/biography/wallenberg.html
Irwin Cotler, quoted in Marshall Shapiro, Cotler Decries Neutrality at Wallenberg Memorial Exhibit, (Jan, 27, 2004), http://www.bnaibrith.ca/article.php?id=123.
Hilaire McCoubrey, THE OBLIGATION TO OBEY IN LEGAL THEORY 185-187 (1997).
In August 1934, the Nazi Reichstag adopted a law combining the positions of President and Chancellor into one and transferring all the authority to Adolf Hitler. The Germany army then revised its require oath of allegiance to include “unconditional obedience to Adolf Hitler, the Führer of the German Reich and people, Supreme Commander of the Armed Forces.” As one commentator explained: “The unprecedented oath was to Hitler personally, not the German state or constitution, as were previous Army oaths. Obedience to Hitler would now be regarded as a sacred duty by all men in uniform, in accordance with their military code of honor, thus making the German Army the personal instrument of the Führer.” The History Place, http://www.historyplace.com/worldwar2/triumph/tr-fuehrer.htm . See infra n. 14.
Rogers, A. P. V. Rogers, LAW ON THE BATTLEFIELD 143 (1996).
A. P. V. Rogers, LAW ON THE BATTLEFIELD 143 (1996).
To be accredited as a child care provider in most states and under the federal Head Start program, providers need to undertake training on this topic. One leading training program, called Good Touch/Bad Touch, involves teaching preschoolers about sexual abuse and unwanted touching. See Good touch/Bad Touch, http://www.goodtouchbadtouch.com/newspr.php. Some experts indicate that preschoolers are better able to grasp instruction about body parts that should not be touched by others than consult their own feelings about wanted or unwanted touching, and better able to follow directions to tell someone else than simply to resist an adult who wants to engage in unwanted activity. One Canadian group, following this analysis, thus urges a curriculum that is based on role play. See http://www.cfc-efc.ca/docs/vocfc/00000069.htm. (“Young children who were taught to use their feelings to decide whether a touch was appropriate or inappropriate were less able to distinguish this for themselves than children who were taught to follow a body safety rule. ‘It is not okay for a bigger person to touch or look at my private parts (unless I need help, like if my private parts are hurt or sick).’ When taught to use a safety rule as the primary decision-making tool, children do demonstrate the ability to recognize unsafe situations.). The same program indicates this approach toward teaching preschoolers how to resist inappropriate touching:
“Children learn best through active participation. It not enough to tell children to say no and go tell, they need the opportunity to practice those behaviors. Through role-plays children get a chance to develop assertiveness skills and practice saying no to an adult.”
Quoted in Promotion and Protection of the Rights of Children: Impact of Armed Conflict on Children. Note by the Secretary-General , A/51/150.26 Aug. 1996 (U.N. Secretary-General Boutros-Boutros Ghali, Note accompanying report by Graca Machel).{Graca has a cedilla on the c} {check for copy of this: ttp://www.crin.org/resources/infoDetail.asp?ID=1544&flag=legal?)
See Plato, the Last days of Socrates: Apology (H. Tredennick trans. 1969); Crimson Tide (1995) (Washington plays Navy officer who must decide whether to disobey the commander’s order to fire nuclear missiles, or follow his command and risk launching an unprovoked nuclear war).
[superior orders and enron article]
See Demetri Sevastofulo, Enron Task Force Slowly Closes in on Higher level Targets, Financial Times (Dec. 4, 2002), p. 2: William Lyons, Former Enron Financ Chief to Face 78 Charges, Scotsman, Nove. 2, 2002, p. 22; Alexei Barrionuevo, The Courtroom Showdosn, New York Times, March 12, 2006, section 4 p. 1.
See Memorandum for William J. Haynes II, General Counsel, Department of Defense from John Yoo, Deputy Assistant Attorney General and Robert J. Delabunty, Special Counsel, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees, Jan. 9, 2002, reprinted in Karen J. Greenberg and Joshua L. Dratel eds., The Torture Papers: The Road to Abu Ghraib (2005), pp. 38-79;
Rumsfed Visits Camp X-Ray CNN.com/Transcripts, Jan. 27, 2002, www.cnn.com/TRANSCRIPTS/0201/27/sun.90.html.
A. P. V. Rogers, LAW ON THE BATTLEFIELD 143 (1996).
Col. Patrick Finnegan, Operational Law: Plan and Execute, Mil. L. Rev. 29, 30 (March.-April 1996).
See, e.g., Anna Cock, Abuse Guard was ‘Just Having Fun.’ Daily Telegraph (Sydney, Australia), Aug. 5, 2004, p. 31.
See R. Hampson, Abuse Less Shocking in Light of History, USA Today (May 13, 2004), p. A1. See also Gary D. Solis, Obedience to Orders: History and Abuses at Abu Ghraib Prison, 2 J. INT’L CRIM. JUST. 988 (2004).
See Cock, supra(discussing report from military investigator Paul Arthur).
Nicholas Riccardi, Mild Penalties in Military Abuse Cases: Observers See a Variety of Reasons for Light Sentences, L.A. Times, Jan 25, 2006, p. A8.
It made international news, See, e.g., Private Guilty of Abuse at Iraq Jail, Hobart Mercury (Australia) (Sept. 28, 2005), p. 23.
The administration consistently argued that only a handful of low-level actors were involved; the lead Army investigator told a Senate committee that failed leadership, rather than a direct military policy, was to blame. Bob Dart, Abu Ghraib Aftermath: Where Does the Buck Stop?, Atlanta Journal-Constitution, May 3, 2005, p. 1A.
Suzanne Goldenberg, End of Infamous Prison: Abu Ghraib, Symbol of America’s Shame, To Close Within Three Months, Guardian (Londong), March 10, 2006, p. 3 (Brigadier Janis Karpinski demoted to colonel in 2005); Bob Dart, Abu Ghraib Aftermath: Where Does the Buck Stop?, Atlanta Journal-Constitution, May 3, 2005, p. 1A (discussing issues of chain of command).
Human Rights Watch, Getting Away with Torture?
Command Responsibility for the U.S. Abuse of Detainees, http://www.hrw.org/reports/2005/us0405/
Command responsibility: the commander is responsible for the misconduct of those under if is command if they acted pursuant to “an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.'” The portion of the Prosecution Brief on the Law of Principals in United States v. Captain Ernest L. Medina, http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_LAW3.HTM .
See also A.P. V. Rogers, COMMAND RESPONSIBILITY UNDER THE LAW OF WAR, www.law.cam.ac.uk/rcil/COMDRESP.doc; (even if the commander “does not participate directly, the fact that a breach was committed by a subordinate will not absolve a superior from responsibility if he knew or ought to have known that it was being committed and did nothing to prevent it or bring the offender to justice).
She received a three year sentence—a year longer than what she was seeking through the plea bargain.
See Hillel Levine, Between Social Legitimation and Moral Legitimacy in Military Commitment, in Legitimacy and Commitment in the Military 9, 11 (Thomas C. Wyatt and Reuvan Gal eds., 1990).
Howard S. Levie, The Rise and Fall of an Internationally Codified Denial of the Defense of Superior Orders, 30 Mil. L. & L of War Rev. 183 (1991) at pp. 189-190. The first instance of a judicial response to atrocity focused on Sir Peter von Hagenbach who was charged with murder and other violations in a court created by the Archduke of Austria in 1474 specifically to create a legal forum rather than summary execution. Von Hagenbach’s defended himself on the grounds that he was just following orders to maintain security as governor of a town in the Upper Rhine; thus, his case launched both the legal response to atrocity and the debate over the defense of following orders. See Don Murray, Judge and master
CBC News Analysis | July 18, 2002, http://www.cbc.ca/news/viewpoint/vp_murray/20020718.html.
Id, at p. 191, quoting paragraphs 11 of the 1945 U.S. proposal.
Agreement for the prosecution and Punishment of the Major War Criminals of the European Axis, with the Charter of the International Military Tribunal attached, Article 8, 82 U.N.T.S. 279 (signed Aug. 8, 1945).
International Military Tribunal Trial of the Major War criminals Before the IMG, vol. 1 (1947) 10, at qw.
[Amplify] and see 1 Trial of Major War Criminals 2981, 325 (1947). [??]
Nuremberg Trial, Judgment, Cmd. No. 6964, at 42.
Charles Garraway, Superior Orders and the International Criminal Court: Justice Delivered or Justice Denied, 836 International Committee of the Red Cross 785-794 (Dec. 21, 1999), at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/4F89CC080CE0E792C1256B66005DD767 (last visited on November 22, 2005). The Tokyo International Military Tribunal’s Charter 6(b) echoed the IMG’s Article 6, and the Tokyo tribunal heard and rejected defenses based on superior orders. See in re Masuda, et al, reprinted in Annual Digest and Reports of Public International Law Cases 286 (H. Lauteracth ed. 1951). Because higher authorities were available for those prosecutions, including General Tomoyuki Yamashita, the Tokyo Tribunal had to focus as well on the scope of command responsibility: when should a commander be held responsible for conduct committed by his troops whether implicitly authorized or not. See, Solis, supra note Error! Bookmark not defined., at 514.
“The units—called the Einsatzgruppen—consisted of some 4,000 men who followed regular Germany army troops into conquered territory, usually in the Soviet Union. There they would round up Jews, gypsies and others, including Soviet Communist party officials. The prisoners would then be executed and their bodies dumped into pits.
These were not top Nazi leaders but elite military squads that conducted widespread killing. When the trial of the Einsatzgruppen opened in 1948, Benjamin Ferencz told the court: ’The slaughter committed by these defendants was dictated not by military necessity but by that supreme perversion of thought, the Nazi theory of the master race.’” See, Michael Montgomery, Stephen Smith and Deborah George, Part of the Story Justice on Trial, The Legacy of Nuremberg, American RadioWorks®, the documentary project of Minnesota Public Radio and NPR NewsSM (July 2002) at http://americanradioworks.publicradio.org/features/justiceontrial/nuremberg_print.html (last visited November 21, 2005).
The Einsatzgruppen Case (United States v. Otto Ohlendorf et al), 4 Trials of War Criminals at 411, 470-471 (1950).
See Gary D. Solis, Obedience of Orders and the Law of War: Judicial Applications in American Forums, 15 Am. U. Int'l L. Rev. 481, 495 (1999).
Id, at 511 (citing The United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War 288 (1948), Morris Greenspan, THE MODERN LAW OF LAND WARFARE 442 (Berkeley and Los
Angeles: University of California Press, 1959)
See discussion of this in Matthew Lippman, The convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years After, 15 Ariz. J. Int’l & comp. Law 415 (1998)(text at notes 288-289).
Levie, supra note at p. 199.
Id., at pp. 199-203; Garraway, supra note Error! Bookmark not defined.. .
See International Committee of the Red Cross, Report on the Work of the Conference of government Experts on the Reaffirmation and Development of International Humanitarian law Applicable in Armed Conflicts (Second Session) Vol. 1, 188 (July 1972).
[see Gary Solis] In his August 2002 memorandum explaining why the Torture and Genocide Conventions would not prevent the use of coercive practices in interrogation, then-Assistant Attorney General Jay Bybee indicated the superior orders could be a defense in an international prosecution for violations of the Torture Convention. See Jay S. Bybee, Memorandum for Alberto R. Gonzales Counsel to the President Re” Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A, Aug. 1, 2002, in The Torture Papers: The Road to Abu Ghraib 172-216 (Karen J. Greenberg and Joshua L. Dratel eds. 2005).
Levie, supra note , at 204.
See e.g., Nico Keijzer, MILITARY OBEDIENCE 145 (1978) (discussing Cicero); id., at 146-7 (discussing Thomas Hobbes). See Thomas Hobbes, Elementa Philosophica De Cive ch. 12 sections 1 and 2. British courts rejected this view in the 17th century. See Hilaire McCoubrey, supra note , at pp. 163-171.
The resolution by the United Nations General Assembly at its first session in 1946 to affirm “the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgments of the Tribunal.”The resolution is United Nations General Assembly Resolution 95(1) of December 1946, “Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg [oomlot over the u here and in text] Tribunal” (http://daccessdds.un.org/doc/RESOLUTION/GEN/NRO/033/46/IMG/NR003346.pdf?OpenElement. As an example of analysis using this resolution to presume continuity in international law—absent the explicit contrary authority in the authorization of new tribunals, see Christopher Staker, Defence of Superior Orders Revisited 79 Australia. L.J. 431, 432 (2005).
Quoted in Staker, id, at 433. See also United Nations Security Counsel Resolution 827, para 2 (adopting the Statute of the ICTY). The United Nations proceeded with very similar language when it authorized an International Criminal Tribunal for Rwanda. See, id, at 434.
These abstract statements have not yet received much application in practice, but the Yugoslav tribunal has reinforced the principle that following superior orders by itself does not supply a defense to charge of war crimes, genocide, or crimes against humanity. In a case that did not squarely raise the question four judges on the Yugoslav tribunal emphasized that acting according to superior orders by itself cannot serve as a defense; a threat to the defendant’s life or limb could supply evidence for the defense of duress, but the sheer fact of orders would not satisfy this requirement. See Prosecutor v. Erdemovic [accent over c], Judgment, Case No IT-96-22-A, Appeals Chamber , 7 October 1997, Separate and Dissenting Opinion of Judge Cassesse; Id., Joint Separate Opinion of Judge McDonald and Judge Cohrah, para 36; Separate and Dissenting Opinion of Judge sir Ninian Stephen, paras 59-60. Judge Cassesse, a distinguished scholar of international law, went further and maintained that a solider has a duty to disobey an order that is manifestly illegal. See Separate and Dissenting Opinion of Judge Cassesse. The Trial Chamber of the Tribunal has followed this distinction between superior orders and duress. The Tribunal concluded that the defendant was acting in accord with the orders of a commanding officer but found no evidence of threats causing duress when the defendant participated a massacre of around 200 civilians. See, Prosecutor v. Mrdja. Sentencing Judgment, Case no IT-02-59-S, Trial chamber, 31 March 2004, para. 67. Moreover, the Tribunal emphasized that orders to participate in the massacre “were so manifestly unlawful” that the defendant “must have been well aware that they violated the most elementary laws of war and the basic dictates of humanity.” Therefore, reasoned the court, the fact that the defendant “obeyed such orders, as opposed to acting on his own initiative, does not merit mitigation of punishment.”
See, Staker, supra note at 434 (check)
For East Timor, see, United Nations Regulation No. 2000/15 from 6 June 2000 at http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf (last visited on November 22, 2005); for Sierra Leone, see, Article 6(4), Statute of the Special Court for Sierra Leone (a bilateral agreement between the United nations and the government of Sierra Leone, Jan. 16, 2002)(“The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the Special Court determines that justice so requires.”) See also Staker, supra note at 440 (citing Prosecutor v. Norman, Prosecutor v. Kallon, Prosecutor v. Norman, Prosecutor v. Kamara, Decision on Constitutionality and lack of Jurisdiction, Case Nos SCLS-2004-15-AR72(E), SCSL-2004-14-AR72(E) and SCSL-2004-16-AR72(E), Appeals Chamber, 13 March 2004, para. 62.
Article 15(e), Statute o f the Iraqi Special Tribunal, at http://www.cpa-iraq/org/human_rights/Statute.htm.
In this light, one author recently proposed that the United States should permit detainees in
Guantanamo to assert the defense of following superior orders at least in so far as that would identify their intentions and whether they acted under duress or mistake. James. B. Insco, Defense of Superior Orders Before Military Commissions, 13 DUKE J. COMP. & INT’L L. 389, 416-7 (2003).
The treaty (The Statute of Rome) authorizing the creation of the permanent International Criminal Court makes clear that it is no defense to follow orders that a manifestly illegal, and it defines orders to commit genocide and crimes against humanity as manifestly illegal. Yet it specifically permits the defense in other circumstances:
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.
ICC Statute, Art. 33 (“Superior Orders and Prescription of Law). Although the ICC has not yet interpreted this statute, it seems to permit the defense in circumstances that the other tribunals would forbid. One scholar argues that “although a defence of superior orders is now expressly recognized in Art. 33 of the ICC Statute, that defence does not yet form part of customary international law. Rather, in customary international law, the Nuremberg principle still prevails, according to which superior orders is no defence but may be taken into account in mitigation of sentence.” Staker, supra, at 446. Staker warns that inconsistencies between the ICC and the Nuremberg principle could produce different results based entirely on where a person happens to be tried. See id., at 447.
See Article 33 of the ICC Statute, supra note Error! Bookmark not defined.
Staker, supra note at pp. 442-446 (describing efforts by Australia, New Zealand, and the United Kingdom to bring their domestic laws in line with the ICC treatment of superior orders).
Manual for Courts Martial, United States (2005 ed), http://www.au.af.mil/au/awc/awcgate/law.mcm/pdf, Rule 916. The discussion notes that “Ordinarily the lawfulness of an order is finally decided by the military judge.”
“An act is performed in compliance with an order which is manifestly unlawful to a reasonable soldier given the circumstances prevailing at the time does not constitute a defence and cannot be pleaded in mitigation of punishment.Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual, Issued on Authority of the Chief of Defence Staff, Custodian: JAG 2001-08-13, http://www.forces.gc.ca/jag/training/publications/law_of_armed_conflict/loac_2004_e.pdf, Section 5 – Possible Defences 1615.
The Canadian JAG training manual continues that according to the Supreme Court of Canada, for an order should be considered manifestly unlawful, “It must be one that offends the conscience of every reasonable, right thinking person: it must be an order which is obviously and flagrantly wrong.” Id., citing Mr. Justice Cory in R. v. Finta, 1 S.C.R. 701 (1994).[get this]
See, M. Cherif Bassiouni, supra note Error! Bookmark not defined., 483.
Another notable effort by social scientists on this subject was prompted by the trial of Lt. Calley following the My Lai Massacre during the Vietnam War is V. Lee Hamilton and Herbert Keman, Crimes of Obedience, Toward a Social Psychology of Authority and Responsibility (1990).
See Eddie Harmon-Jones and Judson Mills, An Introduction to Cognitive Dissonance Theory and an Overview of Current Perspectives on the Theory, in Cognitive Dissonance: Progress on a Pivotal Theory in Social Psychology (Eddie Harmon-Jones and Judson Mills, eds. 1999). Festinger who originated research on the topic indicated that people tend to try to reduce cognitive dissonance by changing one of the beliefs involved in the dissonance, trying to reduce the importance of one of the beliefs, or else trying to acquiring new information or beliefs that will make the conflicting views seem consonant. See Leon Festinger, A Theory of Cognitive Dissonance (Stanford University Press 1957), pp. 25-26.
What follows draws upon W.C. Crain, THEORIES OF DEVELOPMENT: CONCEPTS AND APPLICATIONS (1985); L. Kohlberg & E. Turiel, Moral Development and Moral Education, in PSYCHOLOGY & EDUCATIONAL PRACTICE 410 (Lesser ed. 1971); Piaget, J. THE MORAL JUDGMENT OF THE CHILD (1965); F. Clark Power, Ann Higgins & Lawrence Kohlberg, LAWRENCE KOHLBERG’S APPROACH TO MORAL EDUCATION (1989); Joseph Reimer, Diana Pritchard Paolitto, and Richard H. Hersh, PROMOTING MORAL GROWTH: FROM PIAGET TO KOHLBERG (2d. ed. 1990).
TABLE 1
Elements Level stage social orientation
Preconventional 1 Obedience/punishment
Preconventional 2 individualism, instrumentalism, and exchange
Conventional 3 good interpersonal relationships, good girl/good b0y
Conventional 4 Maintaining social order, law and order
Postconventional 5 social contract and individual rights
Postconventional 6 principled conscience
See the Psi Café, at http://www.psy.pdx.edu/PsiCafe/KeyTheorists/Kohlberg.htm, (last visited on Oct. 20, 2005).
See Stanley Milgram, Obedience to Authority: An Experimental View (1973); Thomas Blass (1992). The Social Psychology of Stanley Milgram. In M.P. Zanna (Ed.), Advances in Experimental Social Psychology, Vol. 25. San Diego: Academic Press, pp. 277-328. See also Elaine Cassel, Why Do People Want To Be Executioners? A Review of Ivan Solotaroff, The Last Face You’ll Ever See, http://college.hmco.com/psychology/resources/students/shelves/shelves_20020504.html
See, http://www.cba.uri.edu/Faculty/dellabitta/mr415s98/EthicEtcLinks/Milgram.htm
Jennifer Farrell, The Power of E?:THE POWER OF E? Contemplating the Influence We Yield,http://www.nd.edu/~techrev/Archive/Spring2002/a6.html (considering ethical issues for scientists and engineers given the deference to experts shown in the Milgram experiment).
See {Mikhail Lyubansky
Many critics through the years have challenged the assumption of invariable stage development and progression and universality of the stages. Critics have faulted the work for cultural and gender bias, and what some would call self-referentialism, See, e.g., Carol Gilligan, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982); LAWRENCE KOHLBERG: CONSENSUS AND CONTROVERSY (Sohan Modgill & C. Modgill, eds., 1986). For responses to the critics, see Lawrence Kohlberg, Charles Levine and Alexandra Hewer, Kohlberg’s Moral Stages: A Current Formulation and a Response to Critics: Contributions to Human Development (1984) Critics have disagreed with the content of particular stages, especially the last stage (where Kohlberg at least at times placed himself).
See Thomas Blass, ed., Obedience to Authority: Current Perspective on the Milgram Paradigm (2000 ), Moti Nissani, A Cognitive Reinterpretation of Stanley Milgram's Observations on Obedience to Authority, American Psychologist 45: 1384-1385 (1990).
Thomas Blass, the Man Who Shocked the World (2004), at; see also Thomas Blass, the Man Who Shocked the World, in Psychology Today (March/April 2002), http://www.psychologytoday.com/articles/index.php?term=pto-20020301-000037.xml&print=1.
Quoted in Blass, The Man Who Shocked the World, in Psychology Today (supra).
Lawrence Kohlberg, Stage and sequence: The cognitive- developmental approach to socialization. In D. A. Golsin (Ed.), Handbook of socialization theory and research 347-480 (Chicago: Rand McNally.1969); F. Clark Power, Ann Higgins, and Lawrence Kohlberg, Lawrence Kohlberg’s Approach to Moral Education (Critical Assessments of Contemporary Psychology (1991).
Lalancette, M-F & Standing, L.G (1990). 'Asch fails again'. Social Behavior and Personality; 18(1) 7-12; see Perrin, S & Spencer, C, 1980. 'The Asch effect - a child of its time'. Bulletin of the BPS, 33, 405-406).
Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (1992). DanielGoldhagen wrote a more controversial study using some of the same sources and arguing that the ideology of anti-Semitism rather than social conformity motivated the men, and made the killings voluntary. Daniel Jonah Goldhagen, Hitler’s Willing Executioners (1996); Daniel Jonah Goldhagen, The Evil of Banality, The New Republic (July 13 & 20, 1992), pp. 49-52). In the second edition of his book, Browning tries to refute Goldhagen’s argument. Christopher R. Browning, Afterword, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (2000). On the importance and rarity of nonconformity in the context of genocide and mass killings, see J. Boyer and M. Geyer, eds., Resistance against the Third Reich, 1933-1990 (showing rare nonconformists who resisted the Third Reich).
Daniel Kahneman, Paul Slovic and Amos Tversky, eds. Judgment under Uncertainty : Heuristics and Biases (1982); Daniel Kahneman, Reference Points, Anchors, Norms, and Mixed Feelings, 51 Organizational Behavior and Decision Processes 296-312 (1992)
H.R. Arkes, Cost and Benefits of Judgment
Errors: implications for Decisions, 110 Psychological Bulletin 486-498 (1991).
“The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military … instruction …” Geneva Convention I, art. 47. A similar requirement appears in the 1949 Geneva Convention II, art. 48, the 1949 Geneva Convention III, art. 127, and the 1949 Geneva Convention IV, art. 144. The laws of war include the punishment associated with genocide and crimes against humanity, and also limitations on defenses to such crimes.
Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948.
Entry into force: 12 January 1951 and published at 78 U.N.T.S. 277:
Article II: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article III: The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Human Rights Watch, Questions and Answers: U.S.Detainees Disappeared into Secret Prisons: Illegal under Domestic and International Law (December 9, 2005), http://hrw.org/backgrounder/usa/us1205/index.htm (discussing application of International Covenant on Civil and Political Rights (ICCPR), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 and Convention Against Torture, General Assembly resolution 39/46, entered into force on June 26, 1987, in accordance with article 27 (1), available at http://www.ohchr.org/english/law/cat.htm.)
Tim Golden, Senior Lawyer at Pentagon Broke Ranks on Detainees , N.Y. Times, Feb. 20, 2006, p. ??. Mora retired in January 2006 after four years as general counsel of the Navy; his objection contributed to the decision to suspend the use of coercive techniques in Guantanamo in December 2002 but did not halt Secretary of Defense Rumsfeld’s approval of such techniques in April 2003. Id.
See Carl Von Clausewitz, ON WAR 120 (Michael Howard and Peter Paret eds.1976).
Elaine Scarry, Thinking in an Emergency (lecture given on Nov. 13 1997 in Harvard University’s Edmund F. Safra Foundation Center for Ethics).
Email to Col. Olson PJ from Charmaine Rand, Development Officer, Defence Ethics Program, Canada,, citing QR & O article 10.015 (and Notes, and article 19.02; Law of Armed Conflict manual, www.forces.gc.ca/jag (soldier’s Code of Conduct rule 11).
See Mark J. Osiel, OBEYING ORDERS: ATROCITY, MILITARY DISCIPLINE AND THE LAW OF WAR 287(1998).
Id., at 287-289.
Osiel also argues that his rule would shift the burden of producing knowledge and persuading a court martial or other court that the soldier’s error was honest and reasonable, while the “manifest illegality” rule leaves the burden on the prosecution to show that the defendant knew or should have known that the orders were illegal. Id., at 292. Osiel has faced criticism, however, on this point: military law makes clear that the prosecution retains the burden to prove “beyond a reasonable doubt that the defense did not exist,” and hence, under current law, the prosecution would have to show beyond a reasonable doubt that the defendant DID know or should have known the order in question was illegal. Major Walter M. Hudson, Book Review, Obeying Orders: Atrocity, Military Discipline and the law of War, 161 MIL. L. REV, 225 231-232 (1999) (citing United States Manual for Courts-Martial, R.C.M. 916(b) (1998)).
To be fair, Osiel made his proposal before the current global situation, and he may well have had in mind peacekeeping operations and other maneuvers other than war, where soldiers have time on their hands.
Martins, supra note 102,at 24, 71-74, 84-85.
The following section reflects discussions and collaboration with Amos Guira, Professor of Law and Director of the Institute for Global Security, Case Western Reserve Law School, and Lt. Col. (ret,) Israel Defense Force.
See Marine Corps Order 3300.4 section 1 (a)(3); Martins, supra note 102.
Martins, supra note 102, at 11; Stephen A. Myrow, supra note 92. See generally Operational Law Handbook 2d , Draft, Center for Military Law and Operations and International Law Division, US Army Judge Advocate General’s School 1991 at 3.
Myrow, supra note 92, at 144.
Operational Law handbook 2d Draft, Center for Military Law and Operations and International Law Divisions, US Army Judge Advocate General’s school 1991 at 17; see Stephen A. Myrow, Waging War on the Advice of Counsel: the Role of Operational Law in the Gulf War, 7 U.S. Air Force Academy J. Legal Stud. 132 (1996-7) at 134.
Osiel, supra note 83, at 328-335.
Army Field Manual 22-100, quoted in David L. Perry, How Ethics Is Taught in the U.S. Army War College, Military Ethics in Professional Military Education—Revisited, 157 (Edwin R. Micewski & Hubert Annen eds. 2005).
U.S. Department of Defense, Marine Corps Order 3300.4 section 1. a (1) (Oct. 20, 2003).
Doug Linder, An Introduction to the My Lai Courts-Martial, - http://www.law.umkc.edu/faculty/projects/ftrials/mylai/mylai.htm
See United States v. Calley, 48 C.M.R. 19 (C.M.A. 1973).
See Dept of Defense Directive 5100.77, The DoD Law of War Programs (10 July 1979).
Some thought the initial reforms reflected an overreaction. See initially: army used training film entitled The Geneva Conventions and the Solider, Dept of Army, Training film 21-4228 (1972), “It was a well-produced movie, with professional actors, but it was a bureaucratic overreaction to the My Lai massacre that had every soldier questioning every order issued by his superior-in addition to portraying superiors in less-than-flattering light. Needless to say, the movie enjoyed a very short run as one commander after another ordered it removed from his base—justifiably, in my opinion, “ see W. Hays Parks, A Few Tools in Prosecution of War Crimes, 149 MIL. L.REV. 73, 79 (1995) (the author was in the JAG corps at the time).
No written orders were issued before the incident that became known as My Lai during the Vietnam War—and the prevalence of vague orders and ambiguities in orders after transmitted down the chain of subordinates are well known. See Herbert C. Kelman and V. Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility 2 ((1989). As military operations develop in urban settings, in occupations, and in stealth operations, actual “orders” are less common than general purposes, and discretion in selecting tactics is exercised by platoon leaders or their equivalent close to the grounds. See infra at .
See Mark J. Osiel, supra note 83, at pp. 305-309.
Nico Keijer, MILITARY OBEDIENCE 43-48 (1978), Mark J. Osiel, supra note 83, at pp. [???]; Major Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, NotLawyering, 143 MIL. L. REV. 3 (1994).
Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412 (3rd Cir. 2003).
Single Davis, No Coke, Pepsi: Rebel Without a Pause, Atlanta Journal and Constitution, March 26, 1998, p. 01A (describing suspension of Mike Cameron for wearing a Pepsi shirt to Greenlrief High School on the day the study body gathered to spell “Coke” for a promotional photo during the visit of Cola-Cola executives. The school intended to compete for a $500 prize for the best method for distributing promotional cards with business discounts for students.
Teaching kids to exercise freedoms of speech and criticism of course means giving them room to do so. The trends in this country especially since Columbine and 9-11 unfortunately may be going in the opposite direction.
Chief Military Prosecutor v. Melinki and Others (13 Pesakim Mehozlim 90), cited in A.G., Israel v. Eichmann, 36 International law Reports (ILR), 277 (Sup. Ct. Israel 1962).