What the rule of law should mean in civics education: from the ‘Following Orders’ defence to the classroom

Abstract

Sixty years after the International Military Tribunal opened in Nuremberg to try ‘major war criminals’, how should soldiers learn not to follow clearly illegal or unconscionable orders? Following the Charter of the International Military Tribunal, judges during the Nuremberg Trials rejected defendants' efforts to avoid punishment on the basis of superior orders. The Cold War stymied subsequent efforts to codify the norm; subsequent tribunals have adopted similar, but not identical, versions of the rule, as have domestic legal systems. Psychological research by Lawrence Kohlberg and Stanley Milgram raises serious questions about whether young soldiers can or will use their own moral assessments to disobey illegal orders or resist engagement in conduct abusing the rights of others. Further adding to the risks of atrocity are the stress and fear of wartime, the ambiguities and complexities of the war against terror, and confusion about the actual standards governing detentions, interrogations and treatment of civilians by the military. Hence, reducing the risks of atrocity requires not only refining and teaching the rule that superior orders are not a defence to military atrocity but also integrating legal and ethical analysis into the day‐to‐day operations of the military, and conceiving of law in this context as a constant set of questions. The dilemma posed for the soldier who must learn both to obey orders and to resist illegal orders offers a rich focal point for students in middle and high school settings. Such instruction could strengthen civilian oversight of the military while also deepening students' abilities to bring their conscience to bear in many settings where obedience and conformity jeopardize adherence to law and morality.

This is the text of the 18th Lawrence Kohlberg Memorial Lecture presented at the 31st annual conference of the Association for Moral Education and the Facing History and Ourselves/Harvard Facing History Conference, Harvard University, Cambridge, MA, 4 November 2005.

Notes

This is the text of the 18th Lawrence Kohlberg Memorial Lecture presented at the 31st annual conference of the Association for Moral Education and the Facing History and Ourselves/Harvard Facing History Conference, Harvard University, Cambridge, MA, 4 November 2005.

1. Jeremiah Smith, Jr. Professor, Harvard Law School.

2. For a thoughtful argument that the drafters could have avoided the critique of illegality by relying on the German Penal Code of 1871, see Cherif Bassiouni, 1999, pp. 10–12.

3. UN Security Counsel Resolution 827, para 2 (1993).

4. The speech was delivered before the death of Milosevic, which led to the premature conclusion of the trial (Moore & Williams, 2006).

5. For a nuanced analysis of the complex meanings the phrase has acquired in the context of US constitutional law, see Fallon, 1997, p. 1; for consideration of the key notions of predictability of clarity associated with the rule of law as a predicate for economic transactions, see Llewellyn, 1938, pp. 1243–1271.

6. The rule of law notion at times seems to carry export of ideas particularly developed in England and the United States. See, for example, Thornburgh, 1990, discussing due process and minority rights.

7. The first instance of a judicial response to atrocity focused on Sir Peter von Hagenbach who was charged with murder and other violations in a court created by the Archduke of Austria in 1474 specifically to create a legal forum rather than summary execution. Von Hagenbach defended himself on the grounds that he was just following orders to maintain security as governor of a town in the Upper Rhine; thus, his case launched both the legal response to atrocity and the debate over the defense of following orders (see Murray, 2002).

8. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, 82 United Nations Treaty Series 279 (entered into force 8 August 1945).

9. Amplify, and see 1 Trial of Major War Criminals 2981, 325 (1947).

10. Nuremberg Trial, Judgment, Cmd. No. 6964, 42.

11. ‘The units – called the Einsatzgruppen – consisted of some 4000 men who followed regular Germany army troops into conquered territory, usually in the Soviet Union. There they would round up Jews, gypsies and others, including Soviet Communist party officials. The prisoners would then be executed and their bodies dumped into pits. These were not top Nazi leaders but elite military squads that conducted widespread killing. When the trial of the Einsatzgruppen opened in 1948, Benjamin Ferencz told the court: “The slaughter committed by these defendants was dictated not by military necessity but by that supreme perversion of thought, the Nazi theory of the master race.”’ See Montgomery et al., 2002.

12. United States v. Otto Ohlendorf (the Einsatzgruppen Case), in 4 Trials of War Criminals Before Nuremberg Military Tribunals Under Control Council Law No. 10, at 411, 470–471 (1950).

13. It made international news. See, for example, Mercury, September 28 2005, p. 23.

14. She received a three year sentence – a year longer than what she was seeking through the plea bargain.

15. Today the German Military Penal Code defines a manifestly illegal order as one that is contrary ‘to what every man's conscience would tell him’. See Osiel, 1998, p. 1010, quoting Arendt, 1996).

16. Chief Military Prosecutor v. Melinki and Others (13 Pesakim Mehozlim 90), in A. G., Israel v. Eichmann, International Law Reports, 36, 277 (Supreme Court of Israel, 1962).

17. Did you know that they were inspired by the defence of ‘just following orders’? Milgram thought he would be able to show that Americans would not have followed orders, unlike those accused at the Nuremberg Trials.

18. Many critics through the years have challenged the assumption of invariable stage development and progression and universality of the stages. Critics have faulted the work for cultural and gender bias, and what some would call self‐referentialism, See, for example, Gilligan, 1982; Modgil & Modgil, 1986. For responses to the critics, see Kohlberg et al., 1983. Critics have disagreed with the content of particular stages, especially the last stage (where Kohlberg, at least at times, placed himself).

19. ‘The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military … instruction …’ Geneva Convention I, art. 47. A similar requirement appears in the 1949 Geneva Convention II, art. 48, the 1949 Geneva Convention III, art. 127, and the 1949 Geneva Convention IV, art. 144.

20. The Tokyo International Military Tribunal's Charter 6(b) echoed the IMG's Article 6, and the Tokyo tribunal heard and rejected defences based on superior orders. See, in re, Masuda et al., reprinted in Lauteracth, 1951. Because higher authorities were available for those prosecutions, including General Tomoyuki Yamashita, the Tokyo Tribunal had to focus as well on the scope of command responsibility: when should a commander be held responsible for conduct committed by his troops whether implicitly authorized or not. See Solis, 1999, p. 514.

21. The resolution by the United Nations General Assembly at its first session in 1946 to affirm ‘the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgments of the Tribunal’. The resolution is United Nations General Assembly Resolution 95(1) of December 1946, Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal (http://daccessdds.un.org/doc/RESOLUTION/GEN/NRO/033/46/IMG/NR003346.pdf?OpenElement). As an example of analysis using this resolution to presume continuity in international law – in the absence of the explicit contrary authority in the authorization of new tribunals, see Staker, 2005, pp. 431–432.

22. See also United Nations Security Council Resolution 827, para 2 (adopting the Statute of the International Criminal Tribunal for Yugoslavia). The United Nations proceeded with very similar language when it authorized an International Criminal Tribunal for Rwanda. See also Staker, 2005, p. 434.

23. These abstract statements have not yet received much application in practice, but the Yugoslav tribunal has reinforced the principle that following superior orders by itself does not supply a defence to charge of war crimes, genocide or crimes against humanity. In a case that did not squarely raise the question four judges on the Yugoslav tribunal emphasized that acting according to superior orders by itself cannot serve as a defence; a threat to the defendant's life or limb could supply evidence for the defence of duress, but the sheer fact of orders would not satisfy this requirement. See Prosecutor v. Erdemovic, Judgment, Case No IT‐96‐22‐A, Appeals Chamber, 7 October 1997, Separate and Dissenting Opinion of Judge Cassesse; Joint Separate Opinion of Judge McDonald and Judge Cohrah, para 36; Separate and Dissenting Opinion of Judge Sir Ninian Stephen, para 59–60. Judge Cassesse, a distinguished scholar of international law, went further and maintained that a solider has a duty to disobey an order that is manifestly illegal. See Separate and Dissenting Opinion of Judge Cassesse. The Trial Chamber of the Tribunal has followed this distinction between superior orders and duress. The Tribunal concluded that the defendant was acting in accord with the orders of a commanding officer but found no evidence of threats causing duress when the defendant participated in a massacre of around 200 civilians. See Prosecutor v. Mrdja. Sentencing Judgment, Case no IT‐02‐59‐S, Trial chamber, 31 March 2004, para. 67. Moreover, the Tribunal emphasized that orders to participate in the massacre ‘were so manifestly unlawful’ that the defendant ‘must have been well aware that they violated the most elementary laws of war and the basic dictates of humanity’. Therefore, reasoned the court, the fact that the defendant ‘obeyed such orders, as opposed to acting on his own initiative, does not merit mitigation of punishment’.

24. For East Timor, see United Nations Regulation No. 2000/15 from 6 June 2000 (http://www.un.org/peace/etimor/untaetR/Reg0015E.pdf); for Sierra Leone, see Article 6(4), Statute of the Special Court for Sierra Leone (a bilateral agreement between the United Nations and the government of Sierra Leone, 16 January 2002). See also Staker, 2005, p. 440 (citing Prosecutor v. Norman, Prosecutor v. Kallon, Prosecutor v. Norman, Prosecutor v. Kamara, Decision on Constitutionality and Lack of Jurisdiction, Case Nos SCLS‐2004‐15‐AR72(E), SCSL‐2004‐14‐AR72(E) and SCSL‐2004‐16‐AR72(E), Appeals Chamber, 13 March 2004, para. 62).

25. Article 15(e), Statute of the Iraqi Special Tribunal (http://www.cpa‐iraq.org/human_rights/Statute.htm).

26. In this light, one author recently proposed that the United States should permit detainees in Guantanamo to assert the defence of following superior orders at least in so far as that would identify their intentions and whether they acted under duress or mistake (Insco, 2003, pp. 416–417).

27. The statute authorizing the creation of the permanent International Criminal Court makes clear that it is no defence to follow orders that are manifestly illegal – and orders to commit genocide and crimes against humanity are manifestly unlawful. The ICC Statute, Art. 33 entitled ‘Superior orders and prescription of law’, holds that:

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.

Thus, as in the Nuremberg principle, obedience to an order to commit genocide or crimes against humanity cannot supply a defence to criminal charges on those bases. But this provision departs from the terms of the Nuremberg and Tokyo tribunals – and those for the former Yugoslavia and Rwanda – in opening the possibility for a defence of following orders under limited circumstances while neglecting to mention superior orders as a possible mitigating factor. Thus, the ICC Statute appears to permit a defence of following orders given charges of war crimes; to exclude the defence altogether against charges of genocide or crimes against humanity; and to permit the defence against other charges if the order was not manifestly illegal and the accused did not know that the order was illegal. See Garraway, 1999. What does this mean? Although the ICC has not yet acted to interpret its statute, simply reading its language suggests that a soldier charged with war crimes – but not genocide or crimes against humanity – can defend himself from criminal liability if he can show three elements: he is obliged to follow the orders to commit the war crimes, and the solider does not know the orders are illegal and the orders are not at face value manifestly illegal. Moreover, a soldier charged with war crimes might be able to assert such a defence if the order in question is not expressly an ‘order to commit genocide’ or an ‘order to commit crimes against humanity’ (Article 33, section 2). Yet even if the claim of superior orders offers a defence under these limited circumstances, they do not offer grounds for mitigation of sentencing. See, Staker, 2005, pp. 442–446 (describing efforts by Australia, New Zealand, and the UK to bring their domestic laws in line with the ICC treatment of superior orders). Staker concludes on p. 446 that ‘although a defence of superior orders is now expressly recognized in Art. 33 of the ICC Statute, that defence does not yet form part of customary international law. Rather, in customary international law, the Nuremberg principle still prevails, according to which superior orders is no defence but may be taken into account in mitigation of sentence’. Staker also warns (p. 447) that inconsistencies between the ICC and the Nuremberg approach could produce different results entirely based on where a person happens to be tried.

28. See Article 33 of the ICC Statute.

29. Email to Col. P. J. Olseon from Charmaine Rand, Development Officer, Defence Ethics Program, Canada, citing Queens Regulations & Orders, article 10.015 and Notes, and article 19.02 (http://www.admfincs.forces.gc.ca/qr_o/intro_e.asp); Law of Armed Conflict Manual (http://www.forces.gc.ca/jag), Soldier's Code of Conduct rule 11.

30. Osiel (1998, p. 292) also argues that his rule would shift the burden of producing knowledge and persuading a court martial or other court that the soldier's error was honest and reasonable, while the ‘manifest illegality’ rule leaves the burden on the prosecution to show that the defendant knew or should have known that the orders were illegal. Osiel has faced criticism, however, on this point: military law makes clear that the prosecution retains the burden to prove ‘beyond a reasonable doubt that the defence did not exist’, and hence, under current law, the prosecution would have to show beyond a reasonable doubt that the defendant did know or should have known the order in question was illegal (Hudson, 1999, pp. 231–232, citing United States Manual for Courts‐Martial, R.C.M. 916(b) (1998)).

31. To be fair, Osiel made his proposal before the current global situation, and he may well have had in mind peacekeeping operations and manoeuvres other than war, where soldiers have time on their hands.

32. See United States v. Calley, 48 C.M.R. 19 (United States Court of Military Appeals, 1973).

33. See US Department of Defense Directive 5100.77, The Department of Defense Law of War Programs (10 July 1979).

34. Some thought the initial reforms reflected an overreaction. Initially the US Army used training film entitled The Geneva Conventions and the Soldier, US Department of Army (1972) Training film 21–4228, ‘It was a well‐produced movie, with professional actors, but it was a bureaucratic overreaction to the My Lai massacre that had every soldier questioning every order issued by his superior – in addition to portraying superiors in less‐than‐flattering light. Needless to say, the movie enjoyed a very short run as one commander after another ordered it removed from his base – justifiably, in my opinion’ (Hays Parks, 1995, p. 79) (the author was in the Judge Advocate General's Corps at the time).

35. US Department of Defense, Marine Corps Order 3300.4 Section 1 a (1) (20 October 2003).

36. See Note 20.

37. See Marine Corps Order 3300.4 Section 1 (a) (3); Martins, 1994.