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Home Armed Conflict The Defense of ‘Obedience to Superior Orders’ in the Age of Legal Clearance of Military Operations

The Defense of ‘Obedience to Superior Orders’ in the Age of Legal Clearance of Military Operations

Published on August 24, 2017        Author: 

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.

Conclusion

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.

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8 Responses

  1. Very interesting points, thanks for drawing attention to the case and sharing your thoughts. I agree that “with the determination by legal advisors that the rules of engagement are lawful they cannot be manifestly unlawful”. However, that is not the end of the story. ROE do not apply themselves. Soldiers apply ROE. In doing so, they must exercise judgment. For instance, a set of ROEs might designate a particular group as a hostile force that may be engaged with lethal force. Soldiers acting in accordance with these ROE should be entitled to assume that engaging members of this group is indeed lawful. However, ROE normally do not specify under what circumstances and subject to what additional conditions force may be used against a target. Kill a person expressing a clear intention to surrender? Execute an unconscious enemy? Let someone slowly bleed to death? Kill a hundred civilians incidentally to kill one enemy fighter? ROE do not address these issues. LOAC does. Soldiers must therefore exercise their own judgment in acting under their ROE. This means that, in practice, the fact that the ROE were signed-off by a lawyer offers only a limited defence.

  2. Jack McDonald

    If ROE represent an interpretation of LOAC, and lawyers state that interpretation is lawful, how are individual soldiers meant to judge otherwise? I think the extreme examples are less useful than cases like civilian mortar spotters, or those driving vehicles that might contribute (somehow) to a military operation. ROE tell soldiers the limits of lawful force in these areas that they can’t necessarily derive from first principles in a given situation.

    I think Or’s piece is far more relevant to contemporary targeting in aerial operations, where it’s impossible for individual pilots (or those with weapons release authority) to act without a worldview (including legality) provided by others.

  3. Or Bassok Or Bassok

    Thanks Aurel and Jack for your comments.
    Aurel- what you write is true: ROE, as many legal rules, are indeterminate. However, this does not mean there is no difference between a reality in which legal clearance means that the order cannot be manifestly unlawful (situation A) and a reality in which an order can be manifestly unlawful even with legal clearance (situation B).

    Take the following ROE: “A soldier is required to shoot in order to kill every person breaking the curfew.”

    A Major informs private D that curfew today begins at 8pm. At 8:10pm, private D sees a child playing soccer in the street. Private D can, as your line of thinking suggests, refuse to shoot and say playing soccer is not “breaking” the curfew. He can also avoid shooting and say: “I had something in my eye” (I think there is a good scene in “Eye in the Sky” that shows that even with legal clearance a drone operator can “play” and avoid the order see: https://www.youtube.com/watch?v=MBCeP_i9BxI). This fits exactly what you say – the combatant has discretion even when following a rather detailed order. But I think there is a difference between reality B in which private D can say “this order is manifestly unlawful” and situation A in which he cannot say so. I think the book “Crime of Obedience” (Au: Kelman and Hamilton) does a good job in explaining how a mentality of “assembly line” is created once you entrust issues of legality in one department and absolve the rest from considering it.

    And this brings me to Jack’s comment. I agree that the point I make is most suitable to aerial operations and my paper was written in that context. However, I think even with regard to ROE it is vital to keep the manifestly unlawful order also in the hands of “simple” soldiers with their “gut feeling.” Even if one thinks that military lawyers do a great job in making sure legality is kept or that ROE are too complex to have “gut feelings” override them, I offer another reason to support my argument. The moment military high command (and politicians) know that official advice means that the order cannot be considered manifestly unlawful (and we are now heading to a reality in which they will rely on a doctrine called “official advice” which means that under certain conditions it would be considered a mistake in law even if the advice was wrong) is the moment in which the selection of military lawyers will change. If military commanders know that what constitutes orders as lawful is military lawyers’ clearance, the issue of who becomes their military lawyers would be decided quite differently than today. So I am fearful from a reality in which it is ok for a soldier to say “I just followed orders” as long as the orders were approved by lawyers. I think it will lead us to a reality in which military lawyers’ discretion will be corrupted.

  4. Thanks for your reply, Or. My point was not that ROE are indeterminate, but that they are not as specific as you seem to imply.

    An ROE rule authorizing lethal force might state that group X is a designated force against which attack is permitted in certain designated circumstances. And that’s it. All that the rule does, from a LOAC point of view, is that it tells the combatant that the designated group constitutes the armed forces of another State party or the organized armed group of a non-State actor. I think it is perfectly reasonable to accept that a combatant may rely on this ROE rule if it is subsequently claimed that the designated group was not in fact an armed force or group liable to direct attack under LOAC. However, all other targeting matters (eg target verification, weapons rules, proportionality etc) are down to the judgment of the combatant and/or addressed/affected by separate orders and not by this ROE rule. This is why I said that in practice ROE are likely to afford only limited a defence.

    Putting ROE aside, the more interesting underlying point is to what extent legal scrutiny of targeting decisions strengthens or gives rise to the defence of superior orders.

  5. federico sperotto

    ROE are authorizations issued by military commanders to use force in situations other than self-defense. “…as long as the rules of engagement were cleared by military lawyers, soldiers would be protected from criminal charges…” can be valid only when the requirements of necessity, proportionality and actuality of danger are respected, meaning that even when acting in accordance with a lawful ROE, a soldier behaves lawfully only when force is used following the three criteria cited above.

  6. federico sperotto

    ““manifestly unlawful” as “morally repulsive.””: “Morally repulsive” is not an objective criterion of judgement, since moral rules and principles are highly subjective. Unlawfulness should be considered only by referring to “the realm of legality”.

  7. federico sperotto

    In the case presented in the post, I guess the soldier was authorized to use force in self-defense, or, outside of self-defense, in accordance with a ROE that sounds like “the use of force to impede intrusions is authorized”. In my opinion, he used potentially lethal force without respecting the principles of necessity and proportionality, and he should have been criminally prosecuted for having used excessive force (at least recklessly).

  8. Susan Kemp Susan Kemp

    Thank you for highlighting this case and the interesting issues it raises, particularly the potential effects of “legal clearance.” As Aurel and Federico point out there is obviously a difference between legal clearance of the RoE as such and legal clearance of specific operational orders. While RoE should be based on the LOAC (and subordinates entitled to presume they are lawful), in practice the RoE are applied to specific situations through the prism of LOAC. Soldiers then retain some decision making power and, perhaps more importantly, COs retain their authority and flexibility to supervise subordinates in response to real situations.

    In the case of clearance of specific orders however, such as the scenario Jack mentions of an order to conduct an aerial bombardment, the combatant must rely on others to provide factual and legal information, for example the absence of civilians or that building B marked as a hospital has actually been taken over by enemy combatants. (One could say the same of any operational unit’s reliance on intelligence). The law should be capable of treating differently the subordinate who is given information and delegated the discretion to decide whether X is a legitimate target as compared to the subordinate who is simply told no facts and that “X is a legitimate target.”

    There are knock on effects for modes of liability though. What of domestic legal systems in which (unlike the Rome Statute) secondary liability is derivative and the liability of accessories depends on liability of the principal? Also what is the effect on committing “through another” / domestic notions such as autoria mediata?