A military pilot receives an order to bomb a building in a densely populated city. He is told that the order has received legal “clearance” from military legal advisors. Can the pilot refuse to obey the order without being punished, since he feels that the order is manifestly unlawful? Will the pilot be held criminally responsible if he obeys, and the order is determined, after the bombing, to be manifestly unlawful?
In our brave new world in which many military operations routinely receive legal clearance by military lawyers, these questions have become highly relevant. Last month’s judgment of the Israeli Supreme Court in HCJ 1971/15 Al-Masri v. The Chief Military Advocate General (in Hebrew) offers interesting answers to these questions in an obiter dictum. In the first section of this post, I briefly introduce the legal dilemma at the heart of these questions. Then I present the new Israeli judgment. In the third section, I analyze the obiter dictum and the response offered in it to the legal dilemma. Thereafter I conclude by fleshing out the gist of my criticism on the Al-Masri obiter.
When is an Order Manifestly Unlawful?
In a paper I wrote several years ago, I presented the dilemma by analyzing the superior order defense. This defense – existing in many legal systems as well as in the Statute of the International Criminal Court (Article 33) – can relieve a soldier of criminal responsibility if the act for which she was indicted was ordered by a superior officer whose orders the soldier had a legal obligation to obey, and the solider did not know that the order was unlawful. However, this defense has an exception that reinstates criminal liability: the manifestly unlawful order doctrine. This doctrine aims to invalidate the claim made by many of the Nuremberg defendants that “I was just following orders.”
Under the manifestly unlawful order doctrine, whereas the superior order defense may be a valid defense for “regular” unlawful orders, if the order is manifestly unlawful the defense fails (Article 33(1)(c) of the ICC Statute is an example of this doctrinal structure that is prevalent in many domestic systems). The manifestly unlawful order doctrine serves not only as an exception to the defense of superior order in a criminal trial after the alleged crime had happened, but also as a criterion to inform soldiers’ decision-making about whether to obey orders. The question of course is which orders are manifestly unlawful?
Two main tests have been developed to interpret the manifestly unlawful order doctrine. Both tests present an objective criterion: whether a reasonable soldier under the circumstances should recognize the order as manifestly unlawful. The first is based on reason: “manifestly unlawful” means that the order is clearly outside the realm of legality. An order by a Colonel to her solider-driver to drive 20 km/h above the 50 km/h speed limit in order to get on time to a routine activity is clearly unlawful and hence manifestly unlawful.
The second test interprets “manifestly unlawful” as “morally repulsive.” This test is based on pre-reflective gut feeling and is usually described in metaphorical terms such as an order that “pierces the eye.” The order to drive 20 km/h beyond the speed limit does not “pierce” one’s eye. However, an order to kill innocent people who return to their village from work because they violated a curfew that had been announced without their knowledge does “pierce the eye.”
For many years these two tests co-existed in courts’ judgments without being clearly identified as separate tests. A clear line between the two tests was not required. But as I show in my paper, the emergence of legal clearance for military operations has altered the situation on two levels. First, by entrusting the determination of the legality of orders to legal advisors, orders are now evaluated by legal experts according to a legal metric. The second test that is based on morality and emotions has become obsolete. After all, if an order was determined by a legal expert – an agent of the state – to be lawful, how can it be not only unlawful, but also manifestly unlawful? Orders that in the past have been considered manifestly unlawful due to the feeling of repulsiveness created by their execution, may now be deemed lawful (see for example “the Early Warning Procedure” discussed in my paper). Second, beyond the reliance now on a metric that is strictly formulated in the legal language, the decision on an order’s legality is also taken from the hand of combatants and put in the hands of lawyers. Military officials continue to pay in public statements lip-service to the old rule that the final decision of whether an order is manifestly unlawful is in the hands of the combatant. But by instituting a phase in the operational routine in which legal advisors “clear” orders, the combatant’s ability to break the “assembly line” mentality and argue that in his “gut-feeling” an order is manifestly unlawful in practical terms disappears.
The Al-Masri Judgment
In Al-Masri, the Israeli Supreme Court denied a petition to open a criminal investigation against soldiers who wounded a Lebanese demonstrator. The judgment by a panel of three judges was written by Judge Uri Shoham, who served in the 1990s as the Chief Military Advocate General (CMAG).
The event occurred in May 2011 during a demonstration of Lebanese citizens who were commemorating the 1948 Palestinian Nakba (“disaster”). According to the judgment, the Lebanese demonstrators walked towards the border fence between Lebanon and Israel, attempted to break it, and threw stones over it. IDF soldiers shot at them. One person – Monib Al-Masri – was severely wounded from the shooting and became paralyzed as a result. After the CMAG and the Attorney General refused to open a criminal investigation of the incident, Al-Masri submitted a petition to the Israeli Supreme Court against their decision. Al-Masri did not deny that he threw stones towards the soldiers. However, he argued that the soldiers violated international law by shooting on unarmed civilians. In addition, he argued that the shooting violated the IDF’s “rules of engagement.” Alternatively, if it did not violate these rules, then these rules are unlawful.
After stating that as a general rule, the Court does not intervene in decisions of the CMAG and the Attorney General not to investigate an incident or not to prosecute, Judge Shoham examines the reasonableness of the decision in this concrete case. In finding the decision reasonable, Judge Shoham relies on the violent nature of the demonstration, the additional shooting by the Lebanese army in an effort to stop the demonstration, and the need to stop it before it crossed the international border. Shoham states that the authorities’ examination of the incident according to the “law enforcement” paradigm (rather than the rules of “armed conflict”) was appropriate. Furthermore, Shoham states that the IDF’s rules of engagement were not violated. In an obiter dictum he writes:
“It should be clarified, beyond what is necessary for this judgment that since the IDF soldiers acted according to the rules of engagement then even if those were unlawful (and I do not hold this view), it is a fact that the soldiers did not know. Therefore, there is no place to attribute a criminal offence to any of them because they lacked the Mens Rea necessary for criminal responsibility.” (paragraph 29).
Interpreting the Al-Masri Obiter Dictum
On a first reading of this obiter dictum it seems that Judge Shoham is simply confusing two criminal defenses: mistake of fact and mistake of law. A soldier who believes she is acting in accordance with the rules of engagement that are lawful, while these rules are unlawful, is mistaken with regard to the legal situation, not the factual situation. There are explicit provisions in the Israeli Military Justice Law and the IDF’s standing orders according to which the rules of engagement are considered part of the law for the purposes of the criminal mistake defenses (see discussion of the Israeli Military Court of Appeals in A/9/13, paragraphs 81-82 [in Hebrew]). To enjoy an exculpatory defense of mistake of law, a soldier needs to show that her lack of knowledge or lack of understanding of the law (the rules of engagement in this case) could not be prevented by a reasonable effort. It is not enough “not to know.” Yet, Shoham treats such a mistake as a mistake of fact (“it is a fact”) that endows a solider with an exculpatory defense as long as she believes (reasonably or not) in the mistaken fact (“the soldiers did not know”).
Such a reading of Shoham means that a judge who served as the CMAG and as a judge in the Military Court of Appeals, and dealt daily with the legality of the rules of engagement, is mistaken of their status as law. It is more plausible to read Shoham’s obiter dictum through the manifestly unlawful order doctrine, especially as many consider the mistake of law defense in the context of understanding/knowing orders as “mirroring” the superior order defense. The ICC Statute even states explicitly that one exception to the rule that mistake of law “shall not be a ground for excluding criminal responsibility,” is a valid claim of the superior order defense (Article 32(2)).
Shoham writes that if a solider does not know that the rules of engagement are unlawful, he cannot be criminally responsible for following them. He emphasizes a paragraph earlier that the CMAG found that the rules of engagement “comply with Israeli law and the rules of international law.” Reading this statement in combination with the obiter dictum points to the conclusion that the Al-Masri judgment adopts the first test for detecting manifestly unlawful orders. According to this reading, the obiter dictum says that even if the rules of engagement – that were cleared by the CMAG – are unlawful, the soldiers are protected since the rules were approved by the legal authorities and the soldiers did not know they are unlawful. In other words, with the determination by legal advisors that the rules of engagement are lawful they cannot be manifestly unlawful and soldiers who follow them are protected by the doctrine of superior orders. Under this interpretation the obiter dictum makes sense.
In recent decades, there is a growing belief that more law and more lawyers is the way to tackle the problem of human rights violations during warfare. The Al-Masri obiter represents the results of this trend. The Israeli Supreme Court stated that as long as the rules of engagement were cleared by military lawyers, soldiers would be protected from criminal charges even if they obeyed unlawful rules of engagement.
The manifestly unlawful order doctrine that negates the superior order defense was created in response to the claim that soldiers are mere automatons who just follow orders. But the rise of legal clearance of orders by lawyers has the potential of bringing back the figure of the soldier as an automaton who just follows orders that are now approved by military lawyers. To prevent this figure from re-emerging it is not enough to utilise military lawyers who have the de-facto monopoly on deciding on the legality of orders. As I show in my paper, such development increases the chances for obedience to orders that might in the past have been disobeyed on the grounds of being manifestly unlawful. To prevent the development of “assembly line mentality” in military operations – that puts the decisions on legality of orders solely in the hands of military lawyers – we must preserve the option that an order can be refused since it “pierces the eye” of a combatant. This can be achieved only by preventing the disappearance of the second test for determining the existence of a manifestly unlawful order.