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Patel, Sunita --- "Superior Orders and Detainee Abuse in Iraq" [2008] NZYbkIntLaw 5; (2008) 5 New Zealand Yearbook of International Law 91

Superior Orders and Detainee Abuse in Iraq

Sunita Patel[∗]

I. Introduction

The defence of superior orders has a long and controversial history. Since the mid 20th century it has suffered from its popular association with the Nazi administration and there has been a great deal of discussion as to whether a defence ought to be available at all. Unfortunately little of that discussion has gone on to focus on what are, or ought to be, the specific parameters of such a plea. The conflict between the obedience demanded by the military and the need to hold individuals accountable for their criminal acts creates a dilemma where a soldier is ordered to do something illegal. The recent detainee abuse cases in Iraq have thrown into sharp relief some of the uncertainties surrounding the defence and its application. The broad nature of the theoretical examinations that have dominated academic discussion, and the lack of recent judicial consideration at the international level, has meant that no consistent, workable plea has been formulated to reflect the reality of modern conflict situations. This paper addresses the specific elements of the defence and how they ought to be interpreted to achieve practical and equitable outcomes.

This paper discusses the defence of superior orders in relation to war crimes only. Aggression, crimes against humanity and genocide will therefore be excluded from this consideration of the defence.[1] The paper begins by briefly outlining the background to the detainee abuse cases in Iraq. It then turns to examine a number of specific aspects which affect the legal or factual circumstances required for its application, and thus which determine the scope of the defence.

This paper argues that the defence has generally been applied too rigidly and in a way that only works well in more classical battlefield situations, which are no longer the prevalent method of warfare. The historical formulation is not appropriate for the situations soldiers find themselves in today, for example, when manning detention centres in Iraq. It is not the case that superior orders should only be considered in mitigation, but rather it ought to constitute a defence in itself. As this paper uses detainee abuse in Iraq as a lens through which to examine the defence, it draws from both the US and UK jurisdictions, as we can find examples of soldiers of similar rank and responsibility pleading the defence in each jurisdiction, in relation to charges for very similar kinds of misconduct. The coalition troops stationed in Iraq have faced many and varied situations, few of which resemble the classical battlefield warfare around which the defence has traditionally developed. Despite this, the defence should not be discarded, but rather be developed in a principled way, with an emphasis on the individual culpability of the soldier in question.

II. Detainee Abuse in Iraq

On 20 March 2003, the US and Britain, leading a 32 nation coalition,[2] began a military campaign against Iraq.[3] In early 2004, graphic photographic evidence began to emerge of the abuse of Iraqi prisoners by coalition troops. The most prominent cases of abuse involved detainees at the infamous Abu Ghraib prison at the hands of US troops. However, cases have also emerged at other facilities across Iraq, in Afghanistan and Guantanamo Bay.[4] Incidents of similar abuse involving British troops occurred at Umm Qasr, later renamed Camp Bucca, as well as an international food aid camp in Basra known as Camp Breadbasket. Numerous instances have been documented, based on photographic evidence, the testimony of detainees and of soldiers posted at these facilities, including such instances, for example:[5]

• Beating, slapping, punching, kicking and jumping on detainees;[6]

• Forcing detainees to simulate or engage in sexual acts;[7]

• Using military dogs to intimidate, frighten or at times attack detainees;[8]

• Subjecting detainees to prolonged loud noise or music;[9]

• Exposure to extreme temperatures, being direct sun or open cells at night;[10] and

• Forcing detainees to remain in stress positions.[11]

A number of soldiers involved in these abuses await courts-martial or have faced charges relating to them. US soldiers involved in the Abu Ghraib abuses have faced courts-martial. All of them were low ranking, enlisted soldiers, variously charged with offences including dereliction of duty for wilful failure to protect detainees, cruelty and maltreatment, assault and committing an indecent act.[12] The British troops charged or convicted have also mostly been of low rank, but there has been at least one notable case where a commanding officer has been charged.[13] The most high profile prosecution so far has been that of three soldiers accused of sexually abusing and humiliating looters at Camp Breadbasket, north of Basra.

Repeated themes in the pleadings and publicity surrounding these cases has been the belief by many of the offenders that their activities were sanctioned by their superiors,[14] and the almost complete lack of accountability of any but the lowest ranking soldiers.[15] The defendants have, for the most part, been low level combatants with minimal military experience. Furthermore, they had intentionally committed the underlying acts, which constitute the actus reus of war crimes. The changing reality of conflict warrants a re-examination of the defence of superior orders and specifically those aspects which have hindered its application in practice, particularly in the case of those soldiers disciplined for abuses in Iraq.

III. The Scope of the Defence of Superior Orders

The continued existence of a strong hierarchical structure and culture of obedience in the military is not enough to justify retaining the historical formulation of the defence. The otherwise clear chain of command was muddied within the detention facilities, with many different agencies, both military and non-military, operating in the same facilities. Furthermore, soldiers were asked to perform prison-based tasks for which they were neither prepared nor trained.[16]

A soldier is part of an institution where immediate and full obedience is highly valued, required in many cases by military necessity and, in most situations, is a legal obligation. However, ‘blind obedience, without any qualification or reservation, undermines the efficiency of the army’.[17] A soldier may have the ability, or duty, to assess the legality of orders issued to him. However, controversy has always surrounded the content or extent of that duty. A soldier issued with a potentially criminal order is caught: he must decide whether to obey orders while risking criminal prosecution, or to disobey criminal orders while risking court-martial.

There are three basic responses to the plea of superior orders that have been employed at different times and by different States.[18] The first is acceptance of superior orders as an absolute defence. This approach would give a complete justification for the acts of the subordinate, and would help to ensure complete obedience to orders within the military hierarchy.[19] In the military and criminal fields it has largely been discarded since the mid 20th century, as a result of the trend towards individual criminal responsibility and the recognition that it is increasingly not only high-level commanders who breach the standards of conduct in warfare.[20]

The second, diametrically opposed approach is the absolute liability formulation. This concept requires that soldiers only obey legal orders, which in turn requires a knowledge of national and international law on their part, and creates an ‘unavoidable obligation’[21] on them to examine the legality of every order.[22] Where the absolute liability approach has been adopted, a plea of superior orders has often been allowed in mitigation, though even mitigation is sometimes excluded in cases where the order was manifestly illegal.[23] The absolute liability approach, coupled with mitigation, has been widely adopted at the international level since WWII.

The third approach is a via media between absolute liability and absolute defence. The compromise option is sometimes referred to as a conditional liability approach or as being governed by the ‘manifest illegality principle’ - superior orders, in the general case, forms a complete defence, unless the subordinate knew or should have known that the order was unlawful or unless the order was manifestly or palpably illegal.[24] Conditional liability has the advantage of striking a balance between the reality and needs of military structure and the supremacy of law. The International Committee for the Red Cross Study of Customary International Humanitarian Law (hereinafter ICRC Study) identifies two relevant rules:

Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.

Rule 155. Obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered. [25]

However, the formulation of what is labelled Rule 155 is not without controversy.

The Nuremberg experience provides an example of the complex and, at times, confused treatment of the defence. The Tribunal Charter states expressly, at article 8, that

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. [26]

However when the International Law Commission laid out the Nuremburg Principles in 1950, the test was formulated differently:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. [27]

The Charter seems to provide for the absolute liability approach, allowing for a plea in mitigation. The principle laid down by the Commission, however, qualifies the rule in such a way as to allow superior orders to form part of a substantive defence (albeit contributing more directly to a defence of duress).

As this paper will discuss, certainty as to which formulation the law adopts is profoundly important to soldiers as they perform their duties. It is sobering to consider that in its attempt to clarify the law by providing a consolidated statement of principles, the Tribunal in fact created a greater level of confusion as to the law, which has not been satisfactorily explained or clarified to this day. The Geneva Conventions create obligations on States parties to prevent, where possible, and prosecute those who commit grave breaches of the rules set out therein.[28] They do not, however, set out any enforcement mechanism or guideline on prosecution, instead leaving States to prosecute and punish in accordance with their own national laws.[29] The defence of obedience to superior orders has been extremely controversial, with widely divergent State practice, such that no position or formulation of the defence is able to be identified as a norm or rule of customary international law.[30] The most that can be said with certainty is that the absolute defence approach has been ruled out.

The conditional liability approach will be discussed because it has gained acceptance in many national systems and at least attempts to strike a compromise between those two competing considerations. While the absolute defence has been ruled out, we cannot discuss the remaining options in an informed way without first examining the ideal parameters of any conditional liability defence. This paper seeks to make such an examination of certain of those parameters. The US and UK will be specifically discussed for a number of reasons. The US can be considered a stylized representation of the conditional liability approach, while the UK common law position can be used to represent the absolute liability approach as it is found in various national laws today.

While both the US and UK reject the absolute defence, the two nations diverge in their approach to superior orders.[31] The British adopt an absolute liability approach such that a soldier cannot ‘escape liability if, in obedience to a command, they commit acts which both violate unchallenged rules of warfare and outrage the general sentiment of humanity’.[32] The US on the other hand, adopt a more flexible approach stating that those who violated the laws of war may be punished, but that superior orders ‘may be taken into consideration in determining culpability, either by way of defence or in mitigation of punishment’.[33]

The same position prevails in US law today. Rule 916 of the Manual for Courts-Martial (Manual) states that it is

a defence 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.[34]

The Army Field Manual provides that where the defence is not available ‘the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment’.[35]

The British Military Manual provides a neat summary of the current state of the UK common law regarding the defence of superior orders:

If a person who is bound to obey a duly constituted superior receives from the superior an order to do some act or make some omission which is manifestly illegal, he is under a duty to refuse to carry out the order and if he does carry it out he will be criminally responsible for what he does in doing so. [A]n order to do an act or make an omission that is illegal, even if given by a duly constituted superior whom the recipient is bound to obey and whether the act or omission is manifestly illegal or not, can never of itself excuse the recipient if he carries out the order, although it may give rise to a defence on other grounds.[36]

The English common law has accepted that while superior orders is not a defence per se, it can be used as a fact in support of a defence of duress, mistake of fact or lack of mens rea.[37] This formulation is unequivocal: even an order made by someone with clear and unchallenged authority, a ‘duly constituted superior’, will not provide a defence, let alone where the chain of authority is unclear. Further, sections 34 and 36 of the Army Act 1955 state that only disobedience of lawful commands is punishable.[38] This approach reflects the Nuremberg Principle and the ‘true test’ enunciated therein – that obedience to superior orders is not a defence, although it may be considered in mitigation and must be coupled with a lack of moral choice, for example, duress. While the absolute liability approach has been adopted in the UK in the military context,[39] the civil law approach has been quite distinct, employing the principle of manifest illegality.[40] ‘[I]n substance if not in form, Anglo-American common law has never consistently excluded the “manifest illegality” principle’,[41] thus while English law can be said to employ an absolute liability standard in the military context, it is not without some pragmatism.

The Rome Statute on the other hand does not adopt the Nuremberg principle but restores the approach accepted before WWI and employed in the Leipzig trials, as well as often in the common law.[42] The compromise solution in article 33 reads:

Superior orders and prescription of law –

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.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. [43]

The effect of article 33(2) is that the defence is only potentially available for war crimes,[44] or possibly the crime of aggression, with the absolute liability approach adopted in regards to crimes against humanity and genocide.[45] There is then a strong presumption against the defence, creating an exception which would need to be interpreted narrowly, and in any case imposing a high threshold using the tripartite, cumulative requirements set out in article 33(1)(a)-(c).[46] It can also be noted that article 33 adopts the more objective approach to manifest illegality. This is in contrast to some US case law, for example, which uses the constructive knowledge standard to infer actual knowledge, rather than as a free-standing alternative to actual knowledge.[47]

There are additional routes by which superior orders may be considered by the ICC, either directly or indirectly. Articles 31(d) and 32 outline the defences of duress and mistake of fact or law respectively, to which superior orders can be considered a relevant fact, possibly vitiating mens rea.[48] Furthermore, article 78 allows the court to take into account factors such as gravity and the individual circumstances of the accused in determining sentencing. Rule 145 of the ICC Rules of Evidence and Procedure provides that the court shall balance all factors, mitigating and aggravating, and consider the circumstances of both the person and the crime. Mitigating circumstances include circumstances ‘falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress’.[49] The defence of superior orders is one such ground for exclusion, so here we see that a mistaken belief in orders, or a defendant with significantly different characteristics to the ‘reasonable person’, such as one with sub-normal intelligence, might have these same factors considered in mitigation, though at present they would fall short of the full defence. Even if the defence of superior orders per se is unsuccessful, the existence of superior orders may still have a bearing on culpability in the ICC, even if only in mitigation. Superior orders as a factor in mitigation is thus common to the positions in the US, UK and ICC although again, despite being available in theory, it does not appear the pleas in mitigation have been successful in the detainee abuse prosecutions.

Before we turn to discuss the various aspects of the defence, it is necessary to note that the defence of superior orders is in fact a specific and limited mistake of law defence. A mistake of law, where a person has formed a positive and honest belief that his actions were legal where in fact they were not, is not generally a defence to criminal charges at the domestic level.[50] This is also true at international criminal law.[51] A narrow exception to that rule is created through the defence of superior orders. The requirement that the subordinate not have actual knowledge of the legality of his orders exempts him from liability where he unknowingly did something illegal. The manifest illegality construction acts as a backstop, limiting the defence such that it cannot be pleaded in relation to the worst crimes.[52] We see this in article 32 of the Rome Statute which stipulates that mistake of law is not a defence, while making an exception if it negates mens rea or in regards to the defence of superior orders in article 33. Article 32(2), relating to mistake of law, reads:

2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in Article 33. [53]

The defence of superior orders is in fact only available where the defendant was labouring under a mistake of law. It is a clear exception to the general rule, which means that in order for a soldier to be able to rely upon a mistake of law, it is essential that he be able to bring himself within the defence of superior orders.

The burden of proof in relation to the defence is unclear. In the adversarial legal systems of the US and UK, the burden is upon the prosecution to prove the elements of the offence, but if the prosecution succeeds, it is then for the defence to raise and prove any affirmative defence. There is no obligation on the prosecution to disprove the existence of an affirmation defence.[54] At the international level, burden of proof issues are less clear. Article 67 of the Rome Statute provides for rights of the accused. Article 67(1)(i) states that the accused has the right ‘[n]ot to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal’. However, article 67(2) provides that

the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.

That implies that it might still be for the accused to raise affirmative defences. Unfortunately, what are normally referred to as defences at domestic law are ambiguously labelled ‘grounds for excluding criminal responsibility’ in articles 31 and 32 of the Rome Statute. Furthermore, while in the investigation phase, the Prosecutor is required to explore both incriminating and exonerating circumstances equally, but there is no equivalent provision relating to the presentation of evidence during the prosecution itself. As this paper intends, in chief, to examine the domestic treatment in the US and UK it may be of little significance, however it is important to note that in addition to the many other areas of uncertainty in relation to the defence of superior orders, it is rather unclear where the burden of proof will lie in any prosecution at the international level.

A. The Requirement of ‘Orders’

We now turn to consider the various elements of the conditional liability defence. The first element that the defendant must establish is the existence of orders. The US provisions refer to acts committed ‘pursuant to orders’,[55] while the British Military Manual refers to orders from a ‘duly constituted superior’.[56] This creates two potential issues, especially in the context of mixed-agency operations such as those in the Abu Ghraib facility: how formally an order needs to be given; and whose orders can form the basis of a defence.

1. Honest Belief in the Existence of Orders

Consideration of the defence of superior orders ought to be triggered where the existence of orders can be proven. However, if the defendant genuinely believes they were, in fact or in effect, ordered to commit the act, what happens when no formal order was actually given? Orders generally may be issued either orally or in writing, however, during engagements or other time-critical situations, they are more likely to be oral.[57] Soldiers are used to obeying orders given orally without question as to their binding nature. There may be few war-time situations in which it would be expedient to furnish low level combatants with written instructions.[58] The statements of both US and UK servicemen involved in these abuses reveal the wide use of instructions of an informal or ‘euphemistic nature’.[59] A command given orally, or in an otherwise ambiguous manner, might be considered as an order when coupled with repeated requests, each time followed by praise or compliments when performed.[60]

The US stipulation of acting ‘pursuant to orders’ would appear to require the actual existence of orders, which must be proved to satisfy the defence.[61] Elsewhere though, official commentary on the duty to disobey manifestly unlawful commands has suggested that ‘the order may be direct or indirect, explicit or implied’.[62] The mistaken belief that they were acting under orders may allow a soldier to use the defence of mistake of fact.[63] It is unclear whether the defence of superior orders itself is available where the soldier genuinely but mistakenly believed in the existence of orders. If the threshold for proving orders is too high and requires concrete evidence of orders, this will significantly narrow the situations in which the defence will be made available. That in turn will mean soldiers must increasingly turn to the defence of mistake of fact.

The problem is that a mistake of fact is only a defence of international criminal responsibility if it negates the mental element required for the crime.[64] However, to form the basis of a defence, the mistake must be ‘concerning some factual elements of a crime, which involves as a consequence a substantial difference between what a person meant to do and the result actually produced’.[65] The soldier must generally have intended to commit the underlying act, as well as being aware of or intend certain circumstances or consequences of their actions. The motivation for humiliating the victim is not a mens rea element. The fact of the existence or lack of orders is irrelevant. It is the mistake of law that the defence of superior orders allows which is key and to which access is crucial if the conduct is to be excused. In order for the defence of superior orders to be available in practice, a genuine mistake of fact as to the existence of orders must also be recognised so as not to create an unfairly narrow defence.

The defence of superior orders has only been considered by either of the ad hoc tribunals in one case - the Erdemovic decision of the ICTY. Article 7(4) of the ICTY Statute and article 6(4) of the ICTR provide that acting in obedience to superior orders is not a defence, but can be a factor in mitigation at sentencing. In the Erdemovic decision, the defence was only considered briefly in conjunction with the defence of duress and the defence was rejected. The defendant pleaded guilty, though alleged that he would have been killed if he had refused to commit murder. In its sentencing judgment, the Trial Chamber held that for a defence of duress or necessity to be made out, based on the fact of a superior order,[66] the test is strict and relies on the very existence of the order, which must be proven.[67]

In the English case of R v Thomas it was held that a mistaken belief in the existence of orders was not sufficient to satisfy the defence[68] while in Keighley v Bell, Justice Willes said that a defendant would need to show ‘not only that he had orders, but that the orders were such as he was bound to obey’.[69] The judgment in the case of R v Smith employed a standard of honest belief, albeit with regard to the legality of the order.[70] The principles of natural justice can and should still be employed with regard to the existence of orders, by allowing honest belief to suffice for that element also.

Traditionally, and particularly in light of the trend towards individual responsibility in international criminal law, criminal responsibility has been based on the principle of culpability – the determination that the defendant is personally reproachable for the crime committed or that he had criminal intent.[71] Where a defendant holds an honest and not unreasonable belief that he has been ordered, but the defence requires proof of actual orders, he may be unjustifiably criminalized, contrary to the principle of culpability. Where perceived commands fall short of the requirement of orders, the honest belief can be considered in mitigation during sentencing. However, a soldier who cannot successfully avail himself of the defence, despite his honest belief and consequent lack of culpability, shall be unjustly branded a war criminal regardless of how lenient a sentence he is given.

An interesting case is that of Crusis - one of the Leipzig trials. In that case the subordinate mistakenly believed that an order to shoot wounded soldiers had been issued. This belief was one factor which prompted the court to find him liable for negligent, rather than intentional, homicide.[72] While in that case the final conviction did not appear to correctly describe the crime, given that the wounded soldiers were in fact deliberately, rather than carelessly or unintentionally, killed, it may be considered to match the moral blame that the defendant deserved. This is an example of the analysis advanced by Knoops - the defence of superior orders can in fact be reduced to a question of whether the defendant lacked the requisite mens rea, and where he does, he ought to be protected from criminal responsibility.[73] This analysis is consistent with a primary emphasis on the principle of culpability and the heightened relevance that, it is submitted, ought to be placed on the honest beliefs and reasonable perceptions of the defendant.

As the US courts-martial for abuses in Iraq did not accept the defence in determining liability, some soldiers resorted to pleading superior orders in mitigation. In relation to Specialist Graner, who received the heaviest sentence, clearly the court did not feel that the defence had been satisfied at trial. It could be surmised that the plea in mitigation met with little sympathy, however in the absence of a reasoned judgment, and in the context of highly specific and unique facts, it is difficult to gauge how the court dealt with the plea.[74]

In the circumstances of some detention facilities in Iraq, uniform and saluting protocols were lax or completely suspended.[75] A number of different military, civilian and intelligence agencies operated within the same facilities.[76] The language was also at times highly euphemistic. In those circumstances it was conceivable that soldiers may have become confused or mistaken as to the nature of the commands or ‘requests’ that they were given. Vagueness or confusion as to the status of a command may not be enough for the defence,[77] however a positive, honest belief as to the nature of the command ought to be enough to satisfy this limb of the test.[78] If such phrases, in the circumstances, convey a clear and unquestioned instruction, such that the soldier honestly believes he has been ordered to do so, that ought to be enough.[79]

A feature of the Abu Ghraib prosecutions was the inability of defendants to prove the orders upon which their plea was based. For example, the requests by Staff Sergeant Ivan Frederick and Specialist Charles Graner to call members of their chain of command to give evidence were denied.[80] Without any evidence to support his contention of orders, Frederick abandoned the defence, though Graner continued to argue unsuccessfully that there had been a ‘persistent, consistent set of orders’.[81] In the English cases arising out of abuse at Camp Breadbasket, the existence of orders was clearer, in that the allegation of orders was corroborated by the defendants’ fellow soldiers.[82]

In both the American and English courts-martial it can be seen that concrete evidence of orders was required before the defence could be made available. This approach is problematic and does not readily allow flexibility in the defence to enable recognition of the dilemmas of more modern and varied conflict situations. On a traditional battlefield, orders might be issued en masse, which would yield a large number of witnesses to corroborate its being given. In the larger detention facilities the proportionally small number of officers who must guard a large number of prisoners in overcrowded facilities has been noted and criticized.[83] Under these conditions, where officers are spread throughout the facility, verbal orders may not necessarily be overheard or issued at large. If orders had been issued formally in writing, copies of such documents or other records or logbooks could have been entered into evidence. However where they are issued verbally or otherwise informally, as appears to have been most common in these Iraqi cases, they are difficult to prove.

An honest and not unreasonable belief in the existence of orders ought to be accepted as satisfying this element of the defence to reflect the culpability of the soldier. In any one case this may be necessary because admissible evidence of orders is lacking, or it may be due to the informal, implied or euphemistic nature of orders. Certain elements of mistake of fact must be built into the defence of superior orders so as not to unreasonably restrict access to the crucial mistake of law component of the defence.

2. Honest Belief in the Authority to Give Orders

The English law on the defence of superior orders contains the explicit additional requirement that the orders be issued by a ‘duly constituted superior’.[84] This creates a second issue: what if the subordinate did receive an order, but the person who issued it did not have authority to issue binding orders, unbeknownst to the subordinate? The reference in article 33 of the Rome Statute, for example, to a ‘legal obligation’ to obey orders would prima facie appear to rule out informal, non-binding requests. The result of excluding orders that may not be legally binding is that members of guerrilla or irregular forces can never use the defence, despite the fact that the consequence for them of disobedience might be more immediate, severe and also not regulated by a justice system with due process. It is surprising that such an explicit requirement has been included in the Rome Statute. The trend in IHL in recent times has somewhat broken down the distinction between international armed conflict and internal conflicts. As such, the law has increasingly recognised both the rights and obligations of guerrilla or irregular forces.[85]

The principle of culpability ought to be applied consistently, such that unofficial or informal orders can form the basis of a defence, just as unofficial or de facto superiors can be held liable for their actions under the doctrine of command responsibility. For that defence to apply, Khan, Dixon and Fulford consider that the subordinate needs to be under the ‘effective control’ of the superior, whether military or civilian.[86] They also state that ‘orders of a de jure or de facto government may be issued by any of its branches by persons representing that government’.[87] According to the Einsatzgruppen case from the Nuremberg tribunal, superiority is defined in terms of the capacity and power to force a person to act, not only rank. Over-reliance on de jure control (rank) ignores the reality of the situation. The true culpability of the accused is found in analysing de facto control.[88]

The extension of the doctrine of command responsibility using the principle of effective control has been based on the notion of culpability – the feeling that those superiors who may not be technically or otherwise legally responsible have been, in fact, practically or morally responsible and ought to be punished.[89] If the principle of culpability is to take such primacy in international criminal law, it ought to do so consistently. Where de facto superiors attempt to avoid liability, by arguing that they are not military commanders, they will not succeed. However, consistency is only achieved if the defence of superior orders likewise recognises orders from both de facto and de jure superiors. Where the binding effect of orders is in question, in light of an honest belief and lack of moral culpability of the soldier, the defence ought to be allowed.

In the US detention facilities in Iraq, the presence of Military Intelligence (MI) personnel or Other Government Agencies (OGA) alongside Military Police (MP) creates confusion as to who an order can be received from and whether a legal obligation to obey attaches. Within Abu Ghraib, a binding order was in fact given that ‘MI Brigade assumes responsibility for the Baghdad confinement facility’.[90] If soldiers are then left operating in the same facility, they arguably have been positively led to believe that at least for some functions, MI can issue orders.

In the context of domestic courts-martial, there is room for a more consistent, culpability-based interpretation, especially under the US approach. This interpretation would better acknowledge the reality of situations that low level combatants have found themselves in, and would also represent a more principled development of international criminal law. However it is unlikely to find favour given the narrowing of the defence that has generally occurred in international law, up until the introduction of the Rome Statute, and the political reaction to public outrage at abuses of this kind.

The wars in Iraq and Afghanistan have created a significant and unprecedented demand for private military and security services. In its report entitled Corporate Mercenaries: The threat of private military and security companies,[91] War on Want specifically notes the growing role of these companies in intelligence gathering, which formerly fell to government agencies.[92] The report states that in a conflict environment like Iraq, there is ‘often no perceptible difference between regular soldiers and their private support workers’.[93]

The Fay[94] and Jones[95] reports also highlight these issues. These two US Army reports focus specifically on the role of MI units and contractors within Abu Ghraib. A repeated theme throughout both reports was the confusion that resulted from the involvement of multiple agencies, including civilian contractors, in interrogation operations. There was also a lack of understanding by the agencies of each others’ roles, responsibilities and powers with regard to interrogation techniques.[96] The Fay report notes that in some cases contractor personnel were ‘supervising’ military personnel and in other cases vice versa.[97] Hersh notes:

The blurring of identities and organisations meant that it was impossible for the prisoners, or significantly, the military policemen on duty, to know who was doing what to whom and who had the authority to give orders.[98]

In his report on the MP unit, Major General Taguba also found an ‘ambiguous command relationship’ inside Abu Ghraib.[99] He found that MI and OGA personnel ‘actively requested’ that the soldiers set conditions for interviews and that the brigade was ‘directed to change facility procedures’ by them.[100] There have been difficulties for defendants in proving the existence of orders, as already discussed, or even the identities of these MI and OGA personnel.[101]

During the sentencing phase of his court-martial for abuse of detainees in Iraq, Specialist Charles Graner told the court that he was told that military intelligence was in charge and that he was to follow their orders.[102] He pleaded this belief, among other things, in mitigation. He was given the harshest penalty of all the Abu Ghraib accused, so it may be presumed that the court found his plea unpersuasive, though it must be borne in mind that he was also considered to be the ring-leader of those abuses.[103]

B. Actual Knowledge of Illegality and Performing with Zeal – the Photos

We now turn to the second element of the defence. In order for the defence to be available, the defendant may not have actual knowledge of the illegality of their orders. The specific nature of the detainee abuse, in particular the photographic evidence, must therefore be addressed as they may provide evidence relevant to the determination of actual knowledge. The photos of soldiers abusing Iraqi detainees have been widely circulated in the press and many clearly show the personnel who have since been charged performing these activities with apparent relish. While the photos evidence a disturbing disregard for the detainees as human beings, some have been quick to point out that ‘[t]he brazenness with which these soldiers conducted themselves, snapping photographs and flashing the “thumbs-up” sign as they abused prisoners, suggests they felt they had nothing to hide from their superiors’.[104] It could provide clear evidence of a lack of appreciation by the soldiers of the gravity of what they were doing.[105]

Performing orders with apparent zeal has long been held to invalidate a plea of superior orders. In 1948 in the Einsatzgruppen Trial,[106] the Nuremberg tribunal rejected the defence pleaded by commanders and members of the German SS. There the tribunal held that

if [a soldier] accepts a criminal order and executes it with a malice of his own, he may not plead Superior Orders... The doer may not plead innocence… if he is in accord with the principle and intent of the superior. When the will of the doer merges with the will of the superior in the execution of the illegal act, the doer may not plead duress under Superior Orders… If at any time after receiving the order he acquiesces in its illegal character, the defence of Superior Orders is closed to him.[107]

This decision has been widely accepted as an accurate statement of law, however an application of this principle of malice or zeal may not be appropriate in the context of detainee abuse.

The Tribunal in Einsatzgruppen was chiefly concerned with defendants who shared the ‘principles and ideology’ of their commanding officers.[108] An army may ‘educate’ its own troops in terms of characteristics or customs of the enemy, to vilify the enemy and sometimes to indoctrinate troops with ideology or nationalistic fervour. In recent years, the climate of fear and to some extent demonisation of Islam may mean that there is a certain degree of prejudice among troops. However, it is by no means certain that the soldiers in the case of these abuses would have acted in the same way in the absence of orders, or, at the very least, official encouragement of these activities.

It has been reported that at Camp Breadbasket, when one commanding officer was alerted to abuses, he issued orders not to assault detainees and instructions regarding their proper treatment.[109] This same incident could indicate that soldiers were acting outside of orders, in which case the defence is not available, but alternatively, could evidence a widespread misinterpretation of orders, which it was obviously believed could be corrected by issuing clearer instructions. Had the soldiers been knowingly acting outside of the scope of orders that they were given, or in fact disobeying orders as a result of personal malice, issuing new orders would not have stemmed the abuse.

The Einsatzgruppen exclusion of the defence ought to apply only if it can be shown that the defendants actually knew of the illegality of their acts. The Tribunal there spoke of a merging of will between superior and subordinate ‘in the execution of the illegal act’. However the Tribunal also speaks of a subordinate’s acquiescence in the ‘illegal character’ of the order. In the situation of detainee abuse, if we assume that there was no actual knowledge of the illegality, the soldiers cannot be considered to have acquiesced in or acted regardless of the illegal character of the act – there is nothing to suggest that, had the illegal character been pointed out to them, they would have acted thus regardless.[110]

At the Camp Breadbasket courts-martial, the three British defendants essentially raised the defence of superior orders, bringing evidence including the testimony of other soldiers that they had been ordered to ‘thrash’ captured Iraqis and that a Major Taylor ordered the abuse.[111] Major Taylor was also accused, by the defence, of destroying his records two weeks before the courts-martial, which would allegedly have proved the orders.[112] Rather than arguing that there was no defence in British law, indications are that the prosecution instead contended that this case did not fit within such a defence. Where the defence appears to have fallen down was the commission of these crimes with apparent zeal – going beyond even the orders given. The court-martial had heard evidence of an ‘idiots guide’ to detainee treatment and a rules of war conference held annually to inform soldiers of appropriate conduct.[113] It is therefore possible also that the court did not accept the contention that the soldiers did not actually know of the illegality. Surprisingly, the case was argued as though a defence of superior orders existed at English law, employing a manifest illegality test. This is not necessarily consistent with the historical development of the defence at English common law, but may be evidence of the influence of article 33 of the Rome Statute. Although those soldiers were not charged under the incorporating legislation of the Rome Statute, these arguments may evidence an acceptance of that same standard at common law.

The key point here is that the apparent zeal of the soldiers, as evidenced by the photographs, should not of itself be considered evidence that they actually knew of the illegality of their actions. Their actions in relation to the photos – the unashamed performance of the acts, the fact that they were photographed and so often, and the wide and voluntary dissemination of the pictures among soldiers of that unit and others – could possibly be taken to indicate that they did not have actual knowledge of their illegality. The content of those photographs and the nature of the abuses captured therein, go rather to the second limb of the cumulative requirements under the conditional liability formulation: whether the defendant had constructive knowledge of the illegality, in accordance with a manifest illegality test.

C. The Test for ‘Manifest Illegality’

The defence is not available where the order was ‘manifestly illegal’ or the soldier ‘should have known’ of its illegality. We first need to examine the meaning of the term ‘manifest illegality’ itself and then turn to examine the reasonable person standard which is used to assess what a soldier should have known in a given situation.

1. The Meaning of ‘Manifest Illegality’

Despite the acceptance of this test in many jurisdictions, the definition of what constitutes manifest illegality has not always been precisely or consistently rendered.[114] Terms such as ‘necessarily’, ‘palpably’, ‘patently’ and ‘universally known to be’ have been variously used.[115] Courts have attempted to formulate the test with varying results. The US government made a statement to the United Nations War Crimes Commission in 1944 that the defence ought not to be available if ‘the order was so manifestly contrary to the laws of war that a person of ordinary sense and understanding would know or should know… that [the] order was illegal’.[116]

The rationale for the manifest illegality standard is to enable the soldier in a dilemma situation to quickly resolve whether or not to follow an order, with a minimum need for ‘reasoning why’.[117] The specific conditions within the detention centres in Iraq, as well as the constant debate within the media and among politicians regarding the war and the technicalities of IHL have created conditions where it is necessary to examine a number of aspects of the manifest illegality test as it applies to those particular soldiers.

Activities which may constitute war crimes are many and varied. Some conduct such as wilful killing, physical mutilation and crimes of a sexual nature must rightfully be considered manifestly illegal,[118] however many other war crimes may be less obviously so. A number of crimes require some form of knowledge or judgment which a low level combatant may not be well placed to make, for example, attacks which harm civilians are allowed if harm to civilian objects is not disproportionate to the military objective.[119] A judgment as to proportionality would be made by a commanding officer, in a better position to judge both the importance of destroying the military target, and in possession of intelligence regarding what or who is located in that area. Yet the attack may be executed by low level combatants. The prohibition against employing expanding or flattening bullets is another example.[120] Technical standards relating to the manufacture of bullets will affect what happens to them on impact and yet, where a soldier is issued with ammunition, he cannot be expected to judge or check what will be the condition of the bullet upon impact.

Of most relevance to the detainee abuse is the uncertainty of the content of, for example, the obligations designed to protect personal dignity and against humiliating and degrading treatment.[121] It could be unclear whether some non-violent treatment such as hooding, pouring cold water on detainees and keeping detainees awake or in stress positions would contravene this provision. The act of photographing the detainees, particularly in these compromising or embarrassing positions, might have been designed to humiliate them. Taking photos in and of itself would be a grave breach of the Geneva Conventions,[122] and yet would not be manifestly illegal. In the discussion of manifest illegality that is to follow, the emphasis must always be on the particular circumstances of each defendant and an assessment of all aspects of the defence must be made on a case by case basis.

2. The Reasonable Person

For the defence of superior orders to prevail, the orders must not have been manifestly illegal, as perceived by the reasonable man. The test is clearly objective in character,[123] however some writers and courts have argued for or taken into account factors relating to the specific situation of the accused when applying an objective analysis – what a reasonable man, standing in the shoes of the accused, perceives the situation to be. United States v Kinder was a case arising out of the Korean War, where the court considered that the determination of manifest illegality was to be made from the point of view of ‘a man of ordinary sense and understanding’.[124] A number of prosecutions arising from the Vietnam-US war dealt with the defence of superior orders. During an offensive to flush out Viet Cong members, a platoon of US soldiers swept through the village of My Lai, killing as many as 500 inhabitants.[125] It was alleged by the soldiers later prosecuted that their Captain ordered them to ‘waste’ the villagers and to treat women and children as the enemy.[126] In one prosecution, United States v Calley, the defendant, a lieutenant, argued that the standard for assessing manifest illegality ought to be from the point of view of a person ‘of the commonest understanding’. This formulation would have been particularly suited to the defence, as Calley was considered to be of below average intelligence, despite having a handful of soldiers under his command. Nevertheless, the court affirmed the ‘man of ordinary sense and understanding’ standard which had been employed in Kinder and rejected the defence in that case.[127] That standard did not import any subjective elements, in the sense that it did not take any account of the defendant’s actual level of sense and understanding, whether that be informed by his age, rank, experience or otherwise.

Conversely, in United States v Hutto, the defendant was acquitted on the basis of a superior orders defence, despite the case being based on the same orders of Captain Medina, as in Calley. This is indicative of the fact that the assessment of manifest illegality is completely subjective and different judges may decide differently based on the same set of facts.[128] In other words, what is obvious, palpable or manifest to one person, may not be so to another. If Calley’s slightly higher rank (compared with Hutto) was a factor in the Court’s decision, this was not satisfactorily articulated. Thus the high threshold of manifest illegality when implying constructive knowledge may not in fact be workable, or at least not equitable if like cases cannot be shown to be treated alike.

In his dissenting opinion in Calley, Judge Darden in fact advocated a more liberal approach to the defence and adopted the ‘commonest understanding’ test proposed by the defendant. Darden placed emphasis on the importance of obedience in the military and felt that only obedience to orders that would be recognised as illegal by those of the lowest intelligence and experience in the military ought to attract penalties. The test for liability proposed by Darden was:

(1) that almost every member of the armed forces would have immediately recognised that the order was unlawful, and

(2) that the accused should have recognised the order’s illegality as a consequence of his age, grade, intelligence, experience, and training.[129]

It is submitted that a test taking account of characteristics of the accused, that will have affected his perceptions or knowledge, must be preferred. This will have the effect that a judge or other decision maker must focus their mind upon what should have been obvious to a person in the defendant’s shoes and thus the judge is less likely to instinctively appeal to their own subjective perception of what is manifest. The introduction of specific characteristics to consider will ensure that any subjectivity in the test favours the defendant.

Insisting that defendants fit within a purely objective reasonable man standard is both unrealistic and unjust.[130] While considering mitigating circumstances, Blackett proposes that in general, the soldier’s training and background ought to be considered,[131] while the majority in Calley also noted the defendant’s lesser than average judgment, perceptions and stability.[132] The Israeli Court in Malinki held that the subjective belief of the defendant was not relevant per se.[133] However in applying the test of manifest illegality, the court said it ought to consider the circumstances under which the order was carried out, as well as the defendant’s knowledge, beliefs and honest and reasonable mistakes. When passing judgment on ranking soldiers who alleged they were carrying out orders from superiors, the Nuremberg Tribunal in the High Command Trial acknowledged the defendants’ limited access to legal facilities in the circumstances.[134]

It has also been said that no civilian can truly understand the situation, both physical and psychological, that is faced by a soldier in modern warfare.[135] The unique nature and role of the military, as well as the general culture, will shape the perceptions of those within it. Thus a reasonable man standard is inappropriate and rather, it ought to be the reasonable soldier. Courts-martial are conducted before a panel of members of superior rank.[136] An explicit consideration taking into account the heat of battle or circumstances of war need not be included, as the members will likely ‘draw upon their knowledge of human nature and the common experiences of men in battle’.[137] As all of the soldiers accused of abuse in Iraq have so far been tried by courts-martial, this has not been an issue. For those who may be brought before the ICC or civilian courts, an explicit ‘reasonable soldier’ standard may be more appropriate.

True culpability has been the focus of international criminal law in developing the doctrine of command responsibility. In the same situation, given the same crime, but in determining the liability of the superior, similar factors have been taken into account, including the accused’s rank, his duties and responsibilities, and the age, training and experience of the men under his command.[138] The same ought to be applied in determining the liability of those men themselves.

Among soldiers in the Iraqi context, a number of such characteristics have been notable. The British and American soldiers who were assigned as prison guards in Iraq were for the most part relatively young. Particularly among the US troops, many had little or no experience in the military, being army reservists who were called up on short notice. To compound the problem they were assigned to the detention facilities as prison guards – a task for which they had not been specifically trained nor were expecting.[139] In his report, Major General Taguba particularly noted their lack of familiarity with the Geneva Conventions.[140] There is evidence of more thorough training of the British soldiers at Camp Breadbasket.[141] For each defendant, the totality of the training that they have received, as well as their age, military experience and formal education ought to be assessed. This should then be used when determining manifest illegality for the purposes of the defence, not only in mitigation, if culpability is to be the guiding principle behind prosecution.

Some soldiers within the detention facilities obviously did recognise the illegality of the activities of their fellow soldiers. These were the officers who refused to participate and also those who reported the abuse and set in motion the investigations at those facilities.[142] One such soldier reportedly testified at Sergeant Frederick’s pre-trial hearing that he had reported the abuse and stayed away because he didn’t want to be part of something that ‘looked criminal’.[143] However, the standard is manifest illegality – that which can be taken as simple, instinctive and almost universally known.[144] The fact that there were some soldiers that recognised the illegality will not of itself defeat the manifest illegality formulation of the defence of superior orders. To be used as evidence of manifest illegality, the perceptions of other soldiers at those facilities would need to have been overwhelming and widespread.

Those accused in the recent detainee abuse courts-martial clearly favoured a more subjective approach, as would indeed potentially be more favourable to them. Specialist Sabrina Harman, for example, claimed the defence of superior orders and emphasised the lack of training that the soldiers had received, lack of rules or standard operating procedure in the prison and complete lack of familiarity with or training on the Geneva Conventions.[145] She and all the others were nonetheless convicted, which may indicate either that the court adopted a more objective approach, or that they felt the specific offences should have been recognised as illegal under either approach.[146]

Other soldiers, including Sergeant Davis told investigators of seeing things that he would ‘question morally’.[147] As Solis explains, illegality is one thing, but a soldier cannot justify refusing to obey a lawful order based on his ‘conscience, religious beliefs, moral judgment, or personal philosophy’.[148] This view would appear to be in line with the duty to obey lawful orders which is set out in many military manuals, thus under the current framework, one ought not to punish a soldier for obeying an order which he perceived to be immoral, but not illegal. This would seem inconsistent with the rationale for the principle of culpability, that liability follow where the defendant is morally reproachable. However, unless all lawful orders are to be considered moral orders or vice versa, finding a solution to this incompatibility is difficult. To allow soldiers to disobey orders they find immoral would be going too far. Morality is informed by so many factors – religion, race, socio-economic status, political view etc. – that it would be impossible to assess the individual’s state of mind. Allowing disobedience on moral grounds is just too broad and destructive of military discipline. Morality is so subjective that a soldier could claim that they thought something immoral where they merely did not wish to obey. It would be very difficult to prove otherwise. Conversely, it would be equally difficult to find a clear line where something becomes immoral in order to impose a workable duty to disobey. Thus, perceived legality is the only standard which is or ought to be the subject of a defence.

3. The Reasonable Person: Informal or Incorrect Training Leading to a Mistake of Law

The previous section advocated that various factors ought to be taken into account when assessing reasonableness. This section examines more closely just one of those factors – how and why a soldier’s training ought to be incorporated into the standard, particularly as it impacts upon the factual existence of a mistake of law.

Green strongly argues that unless soldiers are rigorously educated on the law of armed conflict, the maxim ignorantia juris non excusat cannot validly be applied to them.[149] He rightly points out that international law is made up of customary international law, treaties and in some cases judicial decisions, which results in a large, sophisticated set of rules, many of which are often contested. Further to this, while many of the rules of IHL have been established for some time, the development of international criminal law has been somewhat more recent. It is thus quite possible that the average soldier is not aware of how international criminal law operates or relates to IHL, nor would they be aware of their responsibilities and potential liability under that system.

In Iraq, if the soldiers involved in detainee abuse had been educated at the most basic level about the Geneva Conventions, it is hard to believe that they would not have realized that their actions were in contravention of IHL. However, particularly as regards the US troops, there is little or no evidence of any such training having occurred. A soldier who has received no training in IHL cannot always reasonably be expected to identify what a well trained soldier might consider a manifestly illegal order. As a result, the training of each defendant ought to be taken into account in the reasonable man test. Further, a soldier who has not been trained in IHL and does not have access to legal advice will rely on the legal judgments of his superiors. Officers are generally older and will have cumulatively more training and experience in the military and most importantly greater access to legal advice. Soldiers are also legally obligated to obey what are or appear to be the legal orders of their superiors.

Wars are always accompanied in one way or another by what could be labelled propaganda or misinformation, some of which may represent the genuine policy or assessment of the law by a government, some of which is deliberately intended to mislead. Propaganda also affects the perceptions of soldiers. Against this background, training which emphasises the primacy of obedience to orders and places little significance on the teaching of IHL misleads soldiers as to the importance of observing IHL and how seriously they ought to take the obligation to disobey orders that violate the law of armed conflict.[150] Where troops completely lack training in IHL, they are all the more susceptible to adopting the advice or policy to which they are informally exposed.

There has been a very public and highly charged debate over many aspects of the Iraqi and Afghani conflicts and this discourse has been notable for a number of high-profile statements and leaks of legal advice and government policy which minimise or radically reinterpret IHL in these conflicts.[151] Among these have been legal opinions that the Geneva Conventions do not apply to Taliban and al Qaeda fighters.[152] They advise that the Geneva Conventions are nevertheless to be applied, not out of any binding obligation, but rather as a matter of grace and favour. This in itself downplays the importance of these protections and casts them as a privilege, rather than an entitlement. Torture and mental harm are defined in a particularly narrow way, with a high threshold not necessarily consistent with the Torture Convention. [153] Furthermore, the advice is that some instances of torture might be lawful.[154] It was also advised that the President has complete authority to detain and interrogate combatants and is not bound by domestic US prohibitions against torture or the Torture Convention.[155] There is evidence that soldiers were in fact influenced by these opinions, and also that misinterpretation of policy and legal opinions was a contributing factor in the abuse.[156]

In the context of this general advice and specifically the discussion regarding suspension of the prohibition on torture, one document concludes that the defence of superior orders will be available to ‘personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful’.[157] The rule against torture, being jus cogens, would previously have been a definite, bright line rule and it would be difficult for anyone to argue that torture was not manifestly illegal. The effect of the memos is to blur exactly where the line is drawn - where conduct becomes torture or not - and in some limited cases, whether, even once categorized as torture, that conduct is in fact illegal at all.

For the purposes of discussion let us assume that the soldiers were aware of these opinions and their basic content at the time of the offences and that the documents would have been admissible as evidence in a court-martial. A soldier who was familiar with these opinions and who had no other training regarding the Geneva Conventions could not easily be faulted for assuming the accuracy of legal opinions given by the Attorney General’s office, Counsel to the President, the Secretary of Defence and particularly the President, who in fact sits at the top of any US soldier’s chain of command. According to one document written by the Staff Judge Advocate at Guantanamo Bay, techniques such as yelling at detainees require no prior approval.[158] Furthermore the use of stress positions, isolation, deprivation of light and auditory stimuli, hooding, removal of clothing and using detainee phobias such as fear of dogs to induce stress could be used with the permission of superiors in the Interrogation Section.[159]

If any or all of these opinions prove to be erroneous in their assessment of the law, a soldier may have honestly believed that his orders were legal, based upon this advice from high ranking, highly educated and well respected members of their government, or if such position formed the basis of formal training. This then is a situation where a mistake of law existed in fact, though it is not a legal defence. Soldiers must then attempt to fit themselves within the exception contained in the superior orders defence. If their erroneous training and/or the circumstance of the wide availability of this legal advice were not taken into account, the defence of superior orders would fail, as torture would otherwise be considered manifestly illegal.

If the soldier is formally but erroneously trained, if he genuinely knows no better, he ought not to be punished for the flawed assessment of the law by his superiors. Where there is more than one possible interpretation of a legal provision – where reasonable men might differ on its meaning – if the conduct is in accordance with one such interpretation, it cannot be said to have been manifestly illegal.[160] Thus when assessing the reasonable soldier, the standard ought to be ‘a reasonable soldier who has been trained that…’. Where there has been no formal training but the soldier has been exposed to other sources, for example governmental documents or the opinions of fellow soldiers, the reasonable man test needs to take into account these sources. The test must assess them as they would be perceived from the point of view of a soldier of that age, training, military experience etc., to see whether reasonable people could differ in their assessment of law in light of such sources, or whether such an order remains manifestly illegal in that situation. To do otherwise would fail to take into account the true culpability of the soldier.

The US governmental memo of 6 March 2003 specifically states that commander-in-chief authority ‘could render specific conduct, otherwise criminal, not Unlawful [sic]’.[161] It also states that exercise by a soldier of the Presidential authority to detain and interrogate would be best if derived from a Presidential directive, implying that the President has the power and may need to authorise torture in writing.[162] These could suggest to the ordinary soldier that what may otherwise appear to him manifestly illegal may not in fact, in certain circumstances, be illegal at all. The difficulty is for the soldier who is faced with what he suspects or is fairly sure would be illegal in most situations. The consequences of insubordination must always be considered. He then has to make a decision whether to obey, knowing the order could be based upon an authorization the existence of which he is not entitled to confirm.

In R v Brocklebank, a Canadian Courts-Martial Appeal Court considered the case of a Private Brocklebank, arrested for aiding and abetting the torture of a Somali youth who was tortured and beaten to death while in the custody of Canadian Peacekeepers. Brocklebank had been told by the soldier who administered the beating that he had been instructed by their Captain to do so. The court recognized that

in the military context, where discipline is the linchpin of the hierarchical command structure and insubordination attracts the harshest censure, a soldier cannot be held to the same exacting standard of care as a senior officer when faced with a situation where the discharge of his duty might bring him into direct conflict with the authority of a senior officer.[163]

Private Brocklebank was acquitted of charges of torture and negligent performance of a duty.

While taking into account the fact that training received by soldiers would accord with the degree of culpability we might feel is appropriate, it may create an undesirable outcome and is not conducive to the sort of incentive system that we would wish soldiers to have to act in accordance with IHL. A narrow defence of superior orders creates an incentive for soldiers to act with care and diligence and to question the legality of orders where their suspicions are aroused. A formulation of the defence that allows soldiers to conduct themselves with the most impunity because they have not been trained correctly or at all, and particularly where they have been heavily indoctrinated with distorted views on the law, cannot be by itself agreeable. This would seem to admit the possibility of an army or group heavily indoctrinating soldiers, such that their perceptions of right and wrong are substantially different from that of the common person, but genuinely held. However once again, the defence itself frames the question as to whether the order is legal, not necessarily moral. Justice is not served by the converse where soldiers will be held liable regardless of their honestly held views.

It is advocated that of these two evils, the focus on culpability is to be preferred. While an order may not be manifestly illegal if erroneous training is taken into account, the requirement that the defendant not actually know of its illegality remains. There will be no impunity for those who are truly culpable, having formed a positive view of the order’s illegality and yet performed anyway. The obligation to educate troops on the rules contained in the Geneva Conventions is binding on States parties[164] and thus the lack of training or erroneous training will engage State responsibility at international law, as a breach of those Conventions. Any person in the chain of command who knowingly misleads his subordinates as to the law, or who was mistaken but ought to have known better, will be liable for the actions of his subordinates under the doctrine of command responsibility.[165] While this means that a commander will be punished for, for example, ordering torture which is not authorised by Presidential directive, the combatant who in fact obeyed those orders gains no relief. Command responsibility is complementary to, not a substitute for, the soldier’s liability.[166] The doctrine of command responsibility was introduced to reflect the moral culpability of the superior, not to help relieve or assess the culpability of the subordinate. We must therefore continue to develop the defence of superior orders itself to reflect the true culpability of the subordinate.

IV. Conclusion

In light of the recent proliferation of international criminal courts, soldiers may indeed face prosecution more regularly than in the past. Soldiers must, therefore, be aware of their obligations both at international and domestic law. It has been argued that international law has no need to concern itself with the preservation of military discipline, particularly in the context of aggressive war.[167] However, in reality, education about, respect for and enforcement of the law of armed conflict depends chiefly upon the hierarchical organisation of combatants and the existence of responsible command.

The test for manifest illegality effectively requires that the order be instantly recognisable by the reasonable man as unlawful on its face. In order to preserve the culture of obedience and respect for hierarchy, an order regarding a disputed question of law, or circumstances requiring the soldier to make a situational judgment to determine lawfulness, will not be considered manifestly illegal.[168] Where there is ambiguity or uncertainty as to legality of orders, or where a subordinate disagrees with the legal judgment of a superior, it is widely agreed that military law requires doubts to be resolved in favour of obedience to orders.[169] If a soldier is expected to obey orders within the context of a system of strict discipline, it is a logical consequence that the soldier might expect to be able to plead obedience to superior orders as a defence.[170]

Thus an absolute liability approach ought to be rejected as readily as the absolute defence; both are fundamentally flawed. However, the current formulations of the conditional liability approach do not adequately recognise modern conflict situations. The detainee abuse cases in Iraq throw into sharp relief some of the glaring uncertainties surrounding aspects of the defence. The public response reveals once again the widely held disdain for such a plea, even 60 years on from WWII. It is time to look past these popular prejudices to engage in a discussion as to what the parameters of the conditional liability defence ought to be.

Both in international law and in the domestic case law of the UK and US, the development of the defence has been erratic and at times inconsistent. Little principled legal basis for decisions is shown in the case law but rather they exhibit a resort to concepts of morality and often-times reflect the outrage and anger felt by the military, politicians and the public. Even this emotionally or morally based response has not been felt consistently: cases with similar facts have been decided quite differently and time and again only low level combatants have faced judicial proceedings.

A focus on culpability and the mens rea of the accused will create the result that only those truly considered deserving of punishment are convicted. It is not enough to say that the circumstance of superior orders will be considered in mitigation of punishment if the soldier is nonetheless marked a criminal and risks losing his rank, his job and his freedom. The honest and reasonable perceptions of soldiers ought to be accorded significant importance when determining their liability for offences committed in those circumstances.

If the focus is to be on those who themselves physically commit the acts for which they are prosecuted, their individual guilt or culpability needs to be properly and equitably assessed. Factors such as the level and content of training, time and experience in the military, age, formal education and rank need to be factored into the objective reasonable man test such that a just outcome is achieved by considering what a reasonable man in the defendant’s shoes would have perceived the situation to be.

It is important to consider the defence of superior orders in its own right, as it can take account of the unique circumstances and military reality in a way that other defences cannot. The allowance for mistake of law that is created in the defence of superior orders is vital and unique. If the emphasis is placed on individual culpability, the defence of superior orders appears inevitably to require a more expansive scope than it has been accorded until now, however while the focus on culpability is a means to expand the defence, it is expanded in a controlled and equitable way.

Those who have been prosecuted for detainee abuse to date may well deserve to feel the full weight of the law and no matter how widely the defence is interpreted, many or all of those defendants would in fact have trouble fitting their conduct within it. The conflict does however provide a particularly topical and factually interesting context within which to consider the defence. The fact that few superior officers are likely to ever face judicial consequences for the abuses should not mean that a few low level combatants ought to be convicted merely to avoid the unpalatable appearance of impunity or approval. The defence has always been problematic and difficult to apply. However, this does not mean it ought to be discarded, but rather reassessed and developed in a principled way.

[∗] BCom/LLB(hons), University of Auckland. Solicitor with the firm of Chapman Tripp in Auckland. Many thanks to Treasa Dunworth for all her help and guidance.

[1] It will be assumed that an order to commit a war crime can be other than manifestly illegal c.f. Paola Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’ (1999) 10(1) European Journal of International Law 172, 190; Gerhard Werle, Principles of International Criminal Law (2005) 458. While in theory the defence may be argued where the crime is aggression, the crime itself is as yet undefined and it has been said to be a crime of command, rather than concerning low level combatants.

[2] Robin Wright & Bradley Graham, ‘US Works to Sustain Iraq Coalition’, ,, 15 July 2004, online: <> at 31 August 2006.

[3] This article is not concerned with issues surrounding the legality of the war itself. IHL applies to all situations of armed conflict, regardless of their legal status, see: Human Rights Watch, ‘XVI. Legal Standards and the Conflict in Iraq’ (2005), online: <> at 16 July 2006. There is also some discussion as to whether the situation in Iraq qualifies as an international armed conflict or as an armed conflict not of an international character: Michael Byers, War Law (2005) 132; International Committee of the Red Cross, ‘Iraq post 28 June 2004: protecting persons deprived of freedom remains a priority’ (2004), online: <

nsf/iwpList265/89060107D77D7299C1256EE7005200E8> at 31 August 2006; International Humanitarian Law Research, Adam Roberts, ‘The End of the Occupation in Iraq’ (2004), online: <> at 31 August 2006. In discussing crimes such as torture, killing or humiliating and degrading treatment, the true classification of the conflict is of little importance. Many of the same war crimes, in particular those discussed in this article, are prohibited in both kinds of conflict, either by the Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 12 February 1950, 75 UNTS 135 (entered into force 21 October 1950) (hereinafter GCIII); Common Article 3 of the Geneva Conventions; Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of the Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entry into force 7 December 1978) (hereinafter APII); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, adopted and opened for signature, ratification and accession by GA Res 39/46, UNGAOR, 39th sess, 93rd plen mtg, UN Doc A/Res/39/46 (1984), (entry into force 26 June 1987) (hereinafter Torture Convention) or customary IHL. See Byers, 132; Karim Khan, Rodney Dixon & Sir Adrian Fulford (eds), Archbold, International Criminal Courts: Practice, Procedure and Evidence (2nd ed, 2005) 11.106-11.107. The ICRC study also notes that Rules 154 and 155, relating to superior orders, are norms of customary IHL applicable in both international and non-international armed conflicts. Similarly, the legal status of victims, as prisoners of war, civilians or unlawful combatants, is not particularly significant, as they may qualify as protected persons under the Geneva Conventions, but will at the very least be protected by the basic provisions of Common Article 3: Hamdan v Rumsfeld (No. 05-184) 126 SCt 2749 (2006); Byers, 132.

[4] Human Rights Watch, ‘“No Blood No Foul”: Soldiers’ Accounts of Detainee Abuse in Iraq’ (2006), online: <> at 13 December 2006.

[5] See MG George R Fay, AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (2004) 71-95 for a list and details of 44 incidents of abuse or ill treatment. MG Antonio M Taguba AR 15-6 Investigation of the 800th Military Police Brigade (2004); International Committee of the Red Cross, Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation (2004) (hereinafter ICRC Report); Byers, above n 3, 131-133.

[6] Fay, above n 5, 68; ICRC Report, above n 5, para 25; Taguba, above n 5, 16.

[7] Fay ibid, 69; Byers, above n 3, 16.

[8] Fay ibid, 68; Byers ibid, 132; Taguba, above n 5, 17 and 18.

[9] Byers ibid, 132; ICRC Report, above n 5, para 25.

[10] Fay, above n 5, 70-71; ICRC Report ibid, para 25; Byers ibid, 131.

[11] Byers ibid, 132.

[12] James W Smith, ‘A few good scapegoats: The Abu Ghraib courts-martial and the failure of the military justice system’ (2006) 27 Whittier Law Review 671 (summarising the basic conduct and outcome of each case, drawing on numerous media reports); John Monroe, ‘Applying the responsible corporate officer and conscious avoidance doctrines in the context of the Abu Ghraib prison scandal’ (2006) 91 Iowa Law Review 1367, 1377.

[13] Colonel Jorge Mendonca has been charged under the doctrine of command responsibility, for negligence in command, being a failure to know and control the activities of those under his command and a failure to instruct his men on the stipulations and significance of the Geneva Conventions and British military law. See BBC News, ‘UK soldiers face war crimes trial’ (2005), online: <> at 30 August 2006; Smith ibid, 675.

[14] See, for example, The Scotsman, Emma Gunby, ‘Troops told: give Iraqis a kicking’ (2005), online: < & id=98062005> at 6 September 2006.

[15] See, for example, BBC, ‘Iraq abuse case soldiers jailed’ (2005), online: <> at 30 August 2006.

[16] Taguba, above n 5, 19, 37 and 38.

[17] Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (1965) 53.

[18] In the discussion that follows, military manuals will be discussed where appropriate. Although they are an ‘advisory statement of the law [with] no statutory force or authority’ they nevertheless are ‘important expressions of opinio juris as well as state practice’: Matthew Lippman, ‘Humanitarian Law: The Development and Scope of the Superior Orders Defense’ (2001-2002) 20 Penn State International Law Review 154, 160-161; Werle, above n 1, 157. The ICRC Study methodology included consideration of military manuals as verbal acts which constitute State practice for the purposes of identifying customary international law: Jean-Marie Henckaerts, ‘Study on customary international humanitarian law: A contribution to the understanding and respect for the rules of law in armed conflict’ (2005) 87(857) International Review of the Red Cross 175. The practice volumes of the study refer heavily to and quote from the military manuals of many States.

[19] Werle, above n 1, 451.

[20] There is also distaste for the absurdity that could result from an absolute application of this standard – that only the Supreme Commander or Head of State could be held liable for such breaches: Gaeta, above n 1, 175 fn 4; Werle, above n 1, 451.

[21] Ian Brownlie, ‘Superior Orders: Time for a New Realism?’ (1989) Criminal Law Review 396, 397.

[22] Dinstein, above n 17, 8.

[23] Anthony D’Amato, ‘Superior Orders vs Command Responsibility’ (1986) 80 American Journal of International Law 604; Jean-Marie Henckaerts & Louise Doswald-Beck (eds), Customary International Humanitarian Law (2005) vol 1, 567 (hereinafter ICRC Study).

[24] Silva Hinek, ‘The Superior Orders Defence: Embraced at Last?’ (2005) 2 New Zealand Post-Graduate Law e-Journal 2, 33-34; Gaeta, above n 1, 175.

[25] ICRC Study, above n 23, vol 1, 565.

[26] Charter of the International Military Tribunal, annexed to the London Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, signed on 8 August 1945, 59 Stat 1544, 82 UNTS 279, art 8 (entered into force on 8 August 1945).

[27] Report of the International Law Commission covering its Second Session, 5 June-29 July 1950, Doc A/1316.

[28] See common article 1 of the four Geneva Conventions in which Parties “undertake to respect and to ensure respect for the present Convention in all circumstances”; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3, arts 82(2), 43(1) and 86(2) (entered into force 7 December 1978) (hereinafter API); Michael Bothe, ‘War Crimes’ in Antonio Cassese, Paola Gaeta & John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 379, 392-393.

[29] See, for example, GCIII, above n 3, art 129.

[30] Andreas Zimmermann, ‘Superior Orders’ in Cassese, Gaeta & Jones (eds), above n 28, 957, 965; Hinek, above n 24, 19 where the author discusses the Hostage and Einsatzgruppen cases and the rejection by those tribunals of the defence of superior orders as part of customary international law.

[31] Telford Taylor, Nuremberg and Vietnam: An American Tragedy (1970) 48-49; Hinek, ibid 13.

[32] Great Britain Ministry of Defence, British Manual of Military Law (8th ed, 1944) as quoted in Taylor, ibid.

[33] Department of the Army, Field Manual 27-10: The Law of Land Warfare (1944), para 345(1).

[34] US Joint Service Committee on Military Justice, Manual for Courts-Martial, United States (2000 ed) part IV, rule 916(d) (‘Manual for Courts-Martial’).

[35] Department of the Army, Field Manual 27-10: The Law of Land Warfare (1956) section IV, para 509(a).

[36] Great Britain Ministry of Defence, British Manual of Military Law (HM Stationary Officer, 12th ed, 1972) 23.156 (hereinafter British Manual of Military Law).

[37] Nigel Walker, ‘On excusing Colonel Priebke’ (1997) 147 New Law Journal 720; Paul Eden, ‘Criminal Liability and the Defence of Superior Orders’ (1991) 108 South African Law Journal 640, 647-649.

[38] See also Naval Discipline Act 1957 (UK), ss12 and 14A; Air Force Act 1955 (UK), ss34 and 36; Eden ibid, 647; Timothy C Brewer, ‘Theirs not to reason why – some aspects of the defence of superior orders in New Zealand military law’ (1979) 10 Victoria University of Wellington Law Review 45, 47.

[39] Gaeta, above n 1, 179.

[40] ‘Civil’ refers to English civil law c.f. English criminal or military law. See Brownlie, above n 21, 400-405. There are a number of cases, sometimes involving military officers who have faced civil charges, where the courts have used reasoning akin to manifest illegality; see, for example: Keighley v Bell [1866] EngR 9; (1866) 4 F&F 763; R v Trainer (1864) 176 ER 163; Kidd (1701) 14 St Tr 147. However, in addition to the fact they were decided in the 18th or 19th century and pertained to the civil law, many were obiter.

[41] Brownlie, above n 21, 401.

[42] Hilaire McCoubrey, ‘From Nuremberg to Rome: Restoring the Defence of Superior Orders’ (2001) 50(2) International and Comparative Law Quarterly 386.

[43] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (hereinafter Rome Statute), art 33.

[44] While this discussion is limited to war crimes, outside of the ICC the defence may apply to crimes against humanity and genocide. The defence was pleaded in relation to some of these crimes before the International Military Tribunal at Nuremberg, albeit unsuccessfully.

[45] See explanation at above n 1.

[46] McCoubrey, above n 42, 392; Zimmermann, above n 30, 967; Gaeta, above n 1, 190.

[47] See Eden, above n 37, 645-646, for a comparison of the approaches in case law.

[48] See The Prosecutor v Erdemovic (Appeals Judgment, Separate Opinion of Judges Vohrah and McDonald) [1997] IT-96-22-A, para 34. The majority held that superior orders are not a separate defence per se, but rather a factual circumstance that could be considered in assessing other defences such as duress or mistake of fact. Article 32 of the Rome Statute allows mistake of law as a defence only where it vitiates mens rea or via the defence of superior orders. See also the discussion of Dinstein’s theory of overlapping circumstances at n 110 below.

[49] Rules of Procedure and Evidence of the International Criminal Court, adopted 9 September 2002, UN Doc PCNICC/2000/1/Add.1 (2000), rule 145(2)(a)(i).

[50] See Kumaralingam Amirthalingam, ‘Ignorance of Law, Criminal Culpability and Moral Innocence: Striking a Balance between Blame and Excuse’ (2002) Singapore Journal of Legal Studies 302.

[51] Werle, above n 1, 438.

[52] Khan, Dixon & Fulford (eds), above n 3, 17.64-17.66.

[53] Rome Statute, art 32(2).

[54] In the US context, see: Patterson v New York [1977] USSC 118; 432 US 197 (1977).

[55] Manual for Courts-Martial, above n 34, part IV, rule 916(d).

[56] British Manual of Military Law, above n 36, 23.156.

[57] See Dept.of the Army, Field Manual 101-5: Staff Organisation and Operations (1997) ch 5, H-5; Newton Howard, ‘Evolution of Commander’s Intent in the US Military’, Centre for Advanced Defence Studies, online: <> at 8 December 2006.

[58] See Taguba, above n 5, 19. The situation in detention centres does need to be distinguished from that on a live battlefield and written orders may have been possible, though not necessarily expected or the norm. When interviewed regarding the abuses in Abu Ghraib, after describing requests by intelligence personnel that he take away the mattresses and clothes of detainees, SPC Jason Kennel commented that ‘if they wanted me to do that they needed to give me paperwork’.

[59] Robert Cryer, ‘The Boundaries of Liability in International Criminal Law, or “Selectivity by Stealth’” (2001) 6(3) Journal of Conflict and Security Law 3, 5.

[60] Taylor, above n 31, 51-52; Taguba, above n 5, 19.

[61] P Carter, ‘Superior Orders: Will the Defense work for PFC Lynndie England, who is accused of abusing Abu Ghraib prisoners?’ Findlaw (2004), online: <> at 16 July 2006.

[62] United States Navy, Annotated Supplement to the Naval Handbook (1997), §6.1.4 n 16, as cited in ICRC Study, above n 23, vol 2, 3822.

[63] Khan, Dixon & Fulford, above n 3, 17-55.

[64] Rome Statute, art 32(1). See also Massimo Scaliotti, ‘Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility’ (2002) 2 International Criminal Law Review 1, 1-4, for an overview of mistake of fact in international jurisprudence, international law literature and comparative law.

[65] Scaliotti ibid, 1.

[66] The defence of necessity requires the defendant to show that their conduct was necessary to avoid a greater harm. This defence allows for situations of such overwhelming urgency, that a person must be allowed to respond by breaking the law. Duress or coercion requires the defendant to show he acted under immediate fear of harm, such that his will was overridden. The existence of superior orders can be a relevant fact in the determination of either defence. The manner in which the order was given and received, and the existence of (or lack of) any duty to obey will impact upon the defendant’s moral choice in each situation: see The Prosecutor v Erdemovic (Trial Chamber, Sentencing Judgment) [1996] IT-96-22-T, para 19.

[67] Ibid.

[68] R v Thomas (1816) 4 M&S 441.

[69] Keighley v Bell [1866] EngR 9; (1866) 4 F&F 763, 805 (emphasis added).

[70] R v Smith (1900) 17 SC 561, 568; Eden, above n 37, 649, 650; Brewer, above n 38, 50-51.

[71] Hans-Heinrich Jescheck, ‘The General Principles of International Criminal Law Set Out In Nuremberg, As Mirrored In The ICC Statute’ (2004) 2 Journal of International Criminal Justice 38, 44-48 .

[72] See Lippman, above n 18, 170 and 167.

[73] Geert-Jan Knoops, Defenses in Contemporary International Criminal Law (2001) 46-49.

[74] Smith, above n 12, 715.

[75] Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (2004) 61.

[76] Taguba, above n 5, 18.

[77] Carter, above n 61.

[78] Taguba, above n 5, 19; Hersh, above n 75, 28-30. For example, phrases such as ‘loosen this guy up’, ‘make sure he has a bad night’ or instructions to ‘set favourable conditions for subsequent interviews’ have been reported to be widely used within Iraqi detention facilities.

[79] Taylor, above n 31, 159-160.

[80] Smith, above n 12, 713, 715.

[81] Ibid.

[82] The existence of orders was accepted, despite the lack of documentary evidence. In fact, it was alleged in proceedings that notebooks containing records of those orders were destroyed by the defendants’ superior prior to trial.

[83] Taguba, above n 5, 25.

[84] British Manual of Military Law, above n 36, 23.156.

[85] Dieter Fleck, ‘International Accountability for Violations of the Ius in Bello: The Impact of the ICRC Study on Customary International Humanitarian Law’ (2006) 11(2) Journal of Conflict and Security Law 179, 192-193.

[86] Khan, Dixon & Fulford, above n 3, 17-55.

[87] Ibid.

[88] See, for example: The Prosecutor v Aleksovski (Trial Chamber, Judgment) [1999] IT-95-14/1-T, para 34; The Prosecutor v Kordic (Trial Chamber, Judgment) [2001] IT-95-14/2-T, para 14; The Prosecutor v Kvocka (Trial Chamber, Judgment) [2001] IT-98-30/1-T, para 330. See Khan, Dixon & Fulford ibid, 17-41.

[89] The Prosecutor v Aleksovski (Trial Chamber, Judgment) [1999] IT-95-14/1-T; The Prosecutor v Kordic (Trial Chamber, Judgment) [2001] IT-95-14/2-T; The Prosecutor v Kvocka (Trial Chamber, Judgment) [2001] IT-98-30/1-T. See Khan, Dixon & Fulford, above n 3, 17-41.

[90] Taguba, above n 5, 38.

[91] War on Want, Corporate Mercenaries: The threat of private military and security companies (2006), 3-9, online: <> at 14 December 2006.

[92] Ibid 8.

[93] Ibid 2.

[94] Fay, above n 5.

[95] LTG Anthony R Jones, AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade (2004).

[96] Ibid 5-6, 13, 17-18 and 20; Fay, above n 5, 8-9, 30, 41, 44-45, 46 and 70.

[97] Fay, above n 5, 51 and 54.

[98] Hersh, above n 75, 61.

[99] Taguba, above n 5, 38.

[100] Ibid 18 and 38 (emphasis added).

[101] ‘CIA officers operating at Abu Ghraib used alias [sic] and never revealed their true names’: Fay, above n 5, 54.

[102] Smith, above n 12, 715.

[103] Ibid.

[104] Human Rights Watch, ‘Iraq: US Prisoner Abuse Sparks Concern Over War Crimes’ (2003), online: <> at 16 July 2006, quoting Kenneth Roth, executive director of Human Rights Watch.

[105] Anthony Dworkin, ‘The Iraq Prison Scandal: Who Should be Held Responsible?’ (2004) Crimes of War Project, online: <> at 16 July 2006.

[106] In re Ohlendorf & Others (Einsatzgruppen Trial) (1948) 15 ILR 656, 666.

[107] Ibid 666-668.

[108] Khan, Dixon & Fulford (eds), above n 3, 17-55.

[109] Allan Hall, ‘Order issued to stop abuse of Iraqi prisoners’ (2005) The Scotsman, online: <> at 23 March 2008.

[110] Dinstein likewise asserts that situations of mistake of law, compulsion and obedience to superior orders can exist independently, or two or all of those circumstances can overlap. Where they overlap, this ought to result in immunity. This would be the case of a soldier in Iraq who performs an order that he does not actually know is illegal, with zeal: Dinstein, above n 17, 55-57.

[111] Gunby, above n 14.

[112] Allan Hall, ‘Major in Iraqi prisoner abuse case destroyed his records’ (2005) The Scotsman, online: < & id=95772005> at 6 September 2006.

[113] Hall, above n 109.

[114] Gary Solis, ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’ (2000) 15 American University International Law Review 481, 520.

[115] Lippman, above n 18, 173, 215-218.

[116] As discussed in Solis, above n 114, 509.

[117] Ibid 520.

[118] See common article 3(1)(a) of the four Geneva Conventions.

[119] API, art 57.

[120] See Declaration of St Petersburg (29 November 1868); Declaration On the Use of Bullets Which Expand or Flatten Easily in the Human Body (29 July 1899, Hague Peace Conference); Rome Statute, art 8(2)(b)(xix).

[121] See common article 3(1)(c) of the four Geneva Conventions; Rome Statute, arts 8(2)(b)(xxi) and 8(2)(c)(ii).

[122] See GCIII, above n 3, art 13: ‘Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity’. This protection would apply regardless of whether the prisoners are civilians, alleged criminals or unlawful combatants.

[123] Dinstein, above n 17, 27 and 207.

[124] United States v Kinder (1953) 14 CMR 742, 774.

[125] Robin Rowland, ‘My Lai’ (2004) CBC News, online: < /iraq/abughraib_mylai.html> at 15 July 2006.

[126] United States v Calley (1973) 46 CMR 1131, 1181-1182.

[127] United States v Calley (1973) 48 CMR 19 (Military Court of Appeal), 27-29.

[128] Eden, above n 37, 646.

[129] United States v Calley (1973) 48 CMR 19 (Military Court of Appeal), 31.

[130] The reasonable person standard has also been widely employed (and criticized) in domestic systems. Some commentators have advocated modifying the test along the lines advocated in this paper, taking account of certain characteristics of the accused, while conversely others criticize any departure from the universalism inherent in the reasonable person test. See, for example: André Douglas Pond Cummings, ‘Lions and Tigers and Bears, Oh My or Redskins and Braves and Indians, Oh Why: Ruminations on McBride v Utah State Tax Commission, Political Correctness and the Reasonable Person’ (1999) 36(11) California Western Law Review 11, 26 (comments on the reasonable person standard with regard to race and ethnicity); Naomi Cahn, ‘The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice’ (1992) 77 Cornell Law Review 1398 (a discussion of the merits of the ‘reasonable woman’ standard); cf Anita Bernstein, ‘Treating Sexual Harassment with Respect’ (1997-1998) 111 Harvard Law Review 445, 471-482 (criticisms of modifying the reasonable person standard as a slippery slide towards subjectivity).

[131] J Blackett, ‘Superior Orders: The Military Dilemma’ (1994) Royal United Services Institution Journal 12, 17.

[132] United States v Calley (1973) 48 CMR 19 (Military Court of Appeal), 29.

[133] Chief Military Prosecutor v Malinki (Military Court of Appeal, 1959) (1985) 2 Palestine Yearbook of International Law 69, 111 as discussed in Lippman, above n 18, 224-228.

[134] In re Von Leeb & Others (High Command Trial) (1949) 16 ILM 376, 385.

[135] Richard Wasserstrom, ‘Mens rea requirement for the Soldier’ in Peter Trooboff (ed), Law and Responsibility in Warfare (1975) ch 17, 203-204.

[136] Smith, above n 12, 676.

[137] Leslie Green, Essays on the Modern Law of Warfare (2nd ed, 1999) ch 8, 291-294.

[138] Ibid 293.

[139] Taguba, above n 5, 37.

[140] Ibid 19-20 and 26.

[141] Hall, above n 109.

[142] See, for example: Human Rights Watch, above n 4, 14; Taguba, above n 5, 50.

[143] Seymour Hersh, ‘Torture at Abu Ghraib’ (2004) The New Yorker, online: <> at 16 July 2006.

[144] Llandovery Castle (1922) 16 AJIL 708, 722.

[145] Smith, above n 12, 720.

[146] The author has been unable to obtain official reports of the judgments in any of the courts-martial for abuses in Iraq. Information referred to in this paper is gained from media reports or academic papers. Comments on the reasons for decisions are then chiefly conjecture, as reasoned judgments are not available.

[147] Hersh, above n 143.

[148] Solis, above n 114, 520.

[149] Green, above n 137, ch 6: ‘The man in the field and the maxim ignorantia juris non excusat’. The maxim translates as ‘ignorance of the law is no excuse’.

[150] Ibid 240: Green points out that instruction of IHL is often delegated to unqualified personnel or regarded as a matter of humour.

[151] See Karen Greenberg and Joshua Dratel, The Torture Papers: The Road to Abu Ghraib (2005) for a collection of the available memoranda and reports.

[152] Jay Bybee, Memo, ‘Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees’ (22 January 2002) Assistant Attorney-General, US Department of Justice Office of Legal Counsel; Alberto Gonzales, Memo, ‘Decision Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees’ (25 January 2002) Draft, Counsel to the President. It should be noted that the Bush Administration accepted that the Geneva Conventions do not apply but stated that it would act consistently with the Geneva Conventions in any case.

[153] Jay Bybee, Memo, ‘Re: Potential Legal Constraints Applicable to Interrogations of Persons Captured by US Armed Forces in Afghanistan’ (26 February 2002) Assistant Attorney-General, US Department of Justice.

[154] Jay Bybee, Memo, ‘Standards of Conduct for Interrogation under 18 USC §§2340-2340A’ (1 August 2002) Assistant Attorney-General, US Department of Justice; John Yoo, Memo, ‘Re: Letter regarding “the views of our Office concerning the legality under international law, of interrogation methods to be used on captured al Qaeda operatives”’ (1 August 2002) Deputy Assistant Attorney General, US Department of Justice; Diane Beaver, Memo, ‘Legal Review of Aggressive Interrogation Techniques’ (11 October 2002) Staff Judge Advocate, Department of Defence, JTF 170;

[155] Donald Rumsfeld, Draft: Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations (6 March, 2003) Secretary of Defence.

[156] Fay, above n 5, 8 (policy was changed three times within 30 days, leading to some confusion), 9-10 (the arrival of soldiers who had been on active duty in Guantanamo Bay and Afghanistan meant that techniques and methods developed in one jurisdiction, but not necessary equally applicable nor legal in the other, were used), 16 (an outdated training manual that was in use could have appeared to the untrained to licence interrogators to go further than current policy allows), 19 (techniques such as isolation, segregation, dietary manipulation, use of military dogs and removal of clothing were introduced to selected interrogators ‘from sources other than official Army training’) and 28.

[157] Rumsfeld, above n 155, part III(A)(3)(e) ‘Superior Orders’.

[158] Beaver, above n 154, 1.

[159] Ibid 1-2.

[160] Choosing what is later determined to be the incorrect one of many possible, reasonable interpretations is not generally regarded as a defence in other areas of domestic law. This would be a mistake of law defence, as is explicitly allowed only via the defence of superior orders, though the mistakes allowed are limited to those which are not blatantly or manifestly obvious.

[161] Rumsfeld, above n 155, part III(E)(3) (emphasis in original).

[162] Rumsfeld ibid, part III(E)(3)(a).

[163] R v Brocklebank (1996) 134 DLR (4th) 377, 106 CCC (3d) 234, para 18.

[164] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), art 47; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), art 48; GCIII, above n 3, art 127; Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), art 144.

[165] See generally Kai Ambos, ‘Superior Responsibility’ in Antonio Cassese, Paola Gaeta & John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) 823; William Parks, ‘Command Responsibility for War Crimes’ (1973) 62 Military Law Review 1.

[166] See D’Amato, above n 23.

[167] Dinstein, above n 17, 21-23.

[168] Hinek, above n 24, 33-34.

[169] Brewer, above n 38, 46; Lippman, above n 18, 248-249.

[170] Ingrid Detter, The Law of War (2nd ed, 2000) 427-428.

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