Military ethics and the responsibility of the soldier

Dr. Ruwantissa ABEYRATNE

A “soldier” in this article refers to any member of a military organization. The question posed by this article is when can a soldier be held responsible for following orders, and for giving them.

The conflict of ideas revolving round this question is between the age old proposition offered by the Greek philosopher Cicero and the similar thinking of the more modern positivist Thomas Hobbes, that the law should attribute the actions of a soldier to his superior and not to the soldier who obeys that authority.

This principle, which seemingly insulates the soldier from any moral remorse for carrying out an unjust or illegal order from his superior officer, does not admit of his having the legal justification or official capacity to disobey his superior’s orders.

It is based on the fundamental postulate that the soldier need not feel guilty, however heinous his action, if he were following orders of his superior.

A Subordinate’s Dilemma

The dilemma is rooted in Western philosophy, where on the one hand, in the Last Days of Socrates by Plato, Socrates endorses the principle of the legal and moral rigor placed on a subordinate to obey the superior, and on the other hand to the philosophical treatment of the vexing subject in Hollywood movies such as A Few Good Men and Breaker Morant.

The issue has spread its tentacles from Victor Hugo’s immortal theme in the Hunchback of Notre Dame to Denzel Washington’s more modern tale in Crimson Tide.

Even the legitimacy of Mahatma Gandhi’s non violent movement in India and the Rev. Martin Luther King’s peaceful civil rights protests in the United States have been impugned as morally reprehensible, triggering rounds of debate over the appropriateness of disobeying the law.

The legal philosophy surrounding this conundrum has also permeated the corporate world in the global economy as was seen in the Enron scandal where the Corporation’s chief executive officer offered the defense that he was following the orders of his Board Directors who directed him to devise illicit profit making schemes.

In the corporate world, this argument has been much debated and rejected, particularly when based on the somewhat tendentious imputation that the Board Directors themselves were under implicit orders from the shareholders to make profits for their company, no matter what the circumstances were.

In a later instance, the attorney prosecuting an accountant for making false entries in the WorldCom Corporation argued before the courts that “ “ just following orders” did not constitute a defense in breaking the law.

In military discipline and persuasion, the question as to whether a soldier could invoke the defense of not being able to do the right thing in the face of his superior’s orders to the contrary has been well established by the Nuremberg trials, held at the International Military Tribunal established by the allies after World War 11.

The outcome of the trials was the decision handed down by the court that not only nations but individuals are also responsible for war, war crimes and crimes against humanity. The rationale for the rejection of the superior orders defense is grounded in the fact that responsibility ultimately vests in the individual even if he was under orders.

The Nuremberg principle was emphatically followed by a case in 1950 (the Einsatzgruppen Case) where the United States prosecuted elite military units who, under German influence, rounded up civilians in the Soviet Union and Poland.

The argument adduced to support the prosecution was that the obedience of a soldier is not the obedience of an automation and that the soldier is a reasoning agent.

The argument followed that the fact that a soldier may not, without incurring unfavourable consequences, refuse to drill, salute, exercise, reconnoitre and even go into battle, does mean that he must fulfil every demand made of him.

On the other side is the argument, adduced by one military expert, that during military operations decisions, actions and instructions often have to be instantaneous and do not allow time for discussion or attention by committees.

He further argues that it is vital to the cohesion and control of a military force in dangerous and intolerable circumstances that commanders should be able to give orders and require their subordinates to carry them out.

In this context disobedience in a military environment could mean immediate sanction and court martial.

It is at this juncture that the context of the soldier must be distinguished from that of the civilian who is also required to obey orders, be it from a boss, teacher or a traffic policeman directing the flow of traffic.

In modern, complex military operations where the soldier works in a team often in an acutely stressful environment, could he always be expected to exercise independent judgment in the split second available to him to refuse an order?

This brings to bear the need to set aside rigid conceptualism and consider some compelling and practical problems surrounding the issue.

At the core is the balance required on the one hand between the cardinal principle of military obedience and ensuing liability that might arise in disobeying orders and the psychological and structural contexts that soldiers often find themselves on the other. It is incontrovertible that military training and discipline require obedience and compliance.

It is antithetical and threatening to such a principle if it were to be accommodated by the right to question or disobey.

Military obedience and resistance to illegal orders thus becomes a psychological dilemma that has to be evaluated. At the bottom line therefore lies the question whether the soldier can think for himself in determining whether an order is illegal and whether he could disobey the order irrespective of his military obligation to comply.

Modern military law, which is aligned to the Nuremberg principle, seems to accept the fact that a soldier can and indeed must think for himself, and enforce the rule that an individual can be tried and found guilty as a war criminal irrespective of disciplinary requirements.

Undoubtedly, this could pose a dangerous dilemma to the soldier concerned. When SS Commander General August Scmidthuber was ordered by Adolf Eichmann to kill more than 60,000 Jews in the Budapest Central Ghetto, he had to decide whether to do so and avoid getting shot himself by the Gestapo or heed the threat of Raoul Wallenberg, the humanist who saved thousands of Jews during the war, that if Scmidthuber carried out the order, Wallenberg would personally see that Scmidthuber was arraigned and executed as a war criminal. Fortunately Wallenberg’s threat worked and Scmidthuber desisted.

There are complex issues involved in determining whether an order is illegal or not.

The corporal on the battlefield has only his judgment to go on, as to whether he is doing the right thing and not merely doing things right. He may or may not know that at the core of his determination would lie rules of military service, national constitutional law and international humanitarian law.

Shifting contexts

Shifting contexts and complex military arsenal and technology would add to the difficulty. This is perhaps the reason why Colonel Patrick Finnegan of the United States army, writing to the Military Review in 1996 said: “I know that if I ever go to war again, the first person I am taking is my lawyer”.

Responsibility of the Superior Officer Placed squarely on the other side of the issue is the responsibility of the superior officer.

There could be three main distinct instances under which liability of the superior officer could be considered. Firstly when orders are given with regard to the treatment and questioning of prisoners of war, there might well be instances of uncertainty and confusion particularly among young and enthusiastic troops.

The now notorious prison abuses in Abu Ghraib prison involving the United States military is a case in point.

Although the guilt of the perpetrators who were military officers is indubitable and undisputed, there has been considerable confusion as to the rules applicable in such circumstances and lines of command.

Added to these factors might well be inadequate training, boredom and anxiety among troops. The second instance would be on the battlefront when an order is given to carry out a planned attack that takes time to carry out.

In such an instance there could be doubts in the minds of the troops as to the enormity of the damage to be caused to innocent civilians.

This involves what is now known as the law of uncertain circumstances that deals with collateral damage and the superior officer’s knowledge of such.

An order given by a superior officer might well pose a deep sense of moral awareness in a soldier who would know that if such an order were to be carried out it could result in death to civilians.

This area of humanitarian law also concerns the law of foreseen circumstances when a soldier would know that his actions as ordered would kill a known populace or person.

In such instances a court marshal may have to balance the indiscipline with the moral remorse avoided by the soldier by not carrying out a superior’s order. The third instance concerns a spontaneous order given on the battlefront.

This is arguably the most complex as the soldier will have to think on his feet,

Superior officers are often aware that both psychologically and professionally, they have an influence on their subordinates.

Additionally, there are powerful incentives such as elevation in rank and promotion, coupled with loyalty, fears of demotion or retaliation and an abiding sense of teamwork.

The strong chain of command in a military environment often leaves the soldier no choice but to obey commands, whatever their legality or morality might be.

In this context, international criminal tribunals have shown a tendency to enforce command responsibility based on Cicero’s principle that a command should be attributed to the commander.

For example, a prison camp commander was found guilty by the International Criminal Tribunal for the former Yugoslavia for acts of murder and torture carried out by his subordinate officers where the court imputed knowledge of such acts to the commander on the basis of the command responsibility doctrine.

However, the above does not detract from the fact that individual responsibility of a subordinate soldier who commits abuses, even if he thought he was following orders, is very much a fact of life, based on the principle that the soldier knew or ought to have known that he was departing from established standards.

The operative principle is that the subordinate is bound only to obey the lawful orders of his superior and if he is found to have carried out an illegal order with intent and malice, he cannot plead the superior orders defense. The question then arises as to whether a soldier can invoke the superior order defense in mitigation.

Both the ad hoc International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone do not accept the superior order defense as an absolute defense but permit it as a mitigatory factor, in compliance with United Nations authorization.

This approach has also been followed in the Statute of the Iraqi Special Tribunal and the Special Panel Established to Hear Serious Crimes in East Timor.

The International Criminal Court has slightly veered from this principle by permitting the superior order defence as absolute if the order given to a subordinate was not manifestly unjust or illegal and that the soldier was unaware that the order was unlawful.

Therefore, it is now considered that there are three conditions under which a soldier charged with war crimes can defend himself from criminal liability: that he was legally obligated to commit the war crimes in question; that he did not know the war crimes so perpetrated were against the law; and that the orders were manifestly not illegal.

These conditions however do not apply to genocide or crimes against humanity.

Compelling need

Military ethics in the field of command responsibility and subordinate responsibility portend complex legal, social and moral issues.

Often the complexity resides in the dichotomy of military discipline: obey orders at all times on the one hand; and do not commit war crimes on the other.

Against this backdrop there arises a compelling need for a more coherent code of ethics for the military - one which clearly accepts the rule that crimes against humanity and genocide must not be condoned and should be punished.

The same code must have insistence on the complete involvement of the entire military in creating a philosophy within the armed forces that would ensure lawful and ethical conduct.

For this to happen, the entirety of society, including the civilian population must participate in the democratic process in assisting the authorities in creating such a culture.