- Shlomit Wallerstein, ‘Why English Law Should Not Incorporate the Defence of Superior Orders' [2010] Criminal Law Review 109, 109.
- See n 88–95.
- See eg n 92. See also Sunita Patel, ‘Superior Orders and Detainee Abuse in Iraq’ (2007–08) 5 New Zealand Yearbook of International Law 91.
- Mark Osiel, Obeying Orders—;Atrocity, Military Discipline and the Law of War (Transaction Publishers 1998) 1; Aziz Mohammed, ‘Military Culture, War Crimes, and the Defence of Superior Orders’ (Doctoral Thesis in Legal Science, Bond University 2008) 7.
- Mohammed (n 4) 5–7.
- Patel (n 3) 128.
- Wallerstein (n 1) 109 (see also 119–20).
- eg CJLF Anderson, ‘The Defence of Superior Orders' (1981) 126(2) RUSI Journal 52, 53.
- I further divide the supporters of a superior orders defence into two subgroups.
- For a recent explicit use of the ‘balancing’ description see eg Patel (n 3) 96.
- See Paul H Robinson, ‘Criminal Law Defenses: A Systematic Analysis' (1982) 82 Columbia Law Review 199, 203 (discussing the difference between justifications and excuses).
- Compare eg Wallerstein (n 1) 119–125 with Anderson (n 8) 52–53.
- The names of these two sub-approaches were first suggested by Arnold Enker at a symposium held at Hebrew University. See Mordechai Kremnitzer, ‘Superior Order Defence—;A Symposium Summary’ (1991) 20 Mishpatim, 591, 611 [in Hebrew]. It has been used since then by others, including myself. See eg Ziv Bohrer, ‘Clear and Obvious? A Critical Examination of the Superior Order Defense in Israeli Case Law’ (2005–06) 2 IDF Law Review 197, 218.
- eg Wallerstein (n 1) 125. All three approaches discussed in this article can be further divided into sub-approaches. But for the purpose of the current article, which is to discuss English law, such further division is not needed. Elsewhere, I have presented an extensive survey of the different legal approaches and sub-approaches that have been used in many legal systems to deal with the issue of obedience to illegal orders. See Ziv Bohrer, ‘The Superior Orders Defense in Domestic and International Law—;A Doctrinal and Theoretical Revision' (DPhil thesis, Tel Aviv University 2012) ch 2.1.
- See Wallerstein (n 1) 120.
- AW Brown, ‘Military Orders as a Defense in Civil Courts' (1917–18) 3 Virginia Law Register 641, See also Wallerstein (n 1) 114, 120.
- eg US v Calley 48 CMR 19 (1973).
- While in many situations it is appropriate to assume that soldiers will be able to recognise the illegality of an order if the order is not only illegal but also morally atrocious, as discussed later, this assumption is not always true. That is, situations exist in which soldiers are likely to fail to recognise both the illegality and immorality of a morally atrocious, illegal order (see text to n 56–57).
- Article 6 of Protocol II to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 1980; Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (CUP 2004) 65.
- See a discussion of such harms even under a conditional liability approach In Barak Medina, ‘Political Disobedience in the IDF: The Scope of the Legal Right of Soldiers to be Excused from Taking Part in Military Activities in the Occupied Territories’ (2002) 36 Israel Law Review 73, 82.
- eg Wallerstein (n 1) 119–25.
- AS Paphiti, ‘Duress as a Defence to War Crimes Charges' (1999) 38 Military Law and the Law of War Review 247, 256.
- See Albert V Dicey, Introduction to the Study of the Law of the Constitution (7th edn, Macmillan & Co 1908) 299 (‘Hence the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it’).
- Wallerstein (n 1) 123–24.
- See John Kaplan, ‘Mistake of Law’ in Albin Eser and others (eds), Justification and Excuse: Comparative Perspectives, vol 2(Transnational Juris Publications Inc 1987) 1125, 1142–43 (discussing the ‘thin ice’ doctrine).
- Patrick White, ‘Defence of Obedience to Superior Orders Reconsidered’ (2005) 79 Australian Law Journal 50, 56.
- Eg Stanley Milgram, ‘Behavioral Study of Obedience’ (1963) 67 Journal of Abnormal and Social Psychology 371; Jerry M Burger, ‘Replicating Milgram: Would People Still Obey Today?’ (2009) 64
- American Psychologist 1. See also Craig Haney and others, ‘Interpersonal Dynamics in a Simulated Prison’ (1973) 1 International Journal of Criminology and Penology 69 (examining implicit orders and role identification).
- Natasha Gonzalez, ‘Moral Monsters or Ordinary Men Who Do Monstrous Things? Psychological Dimensions of the Military and Their Implications for War Crimes Tribunal Defenses’ (DPhil thesis in Psychology, Widener University 2004) 159. See also Jean-Jacques Frésard, The Roots of Behavior in War: A Survey of the Literature (ICRC 2004) 82–88.
- See Philip G Zimbardo, ‘Revisiting the Stanford Prison Experiment: A Lesson in the Power of Situation' (2007) 53 Chronicles of Higher Education B6, B6–B7.
- Joshua Dressler, ‘Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits' (1988–89) 62 South California Law Review 1331, 1364–65.
- See V Lee Hamilton, ‘Intuitive Psychologists or Intuitive Lawyers? Alternative Models of the Attribution Process' (1980) 39 Journal of Personality and Social Psychology 767, 771.
- See eg n 54–55, 62; Herbert C Kelman and V Lee Hamilton, Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (Yale UP 1989) 166.
- See Jeanne L Bakker, ‘The Defense of Obedience to Superior Orders: The Mens Rea Requirement' (1989–90) 17 American Journal of Criminal Law 55, 62.
- Eg Manual of Air Force Law, vol 1(6th edn, updated 1993) 156.
- See eg ibid; HHL Bellot, ‘War Crimes and War Criminals’ (1916) 36 Canadian Law Times 754, 766; Nico Keijzer, ‘A Plea for the Defence of Superior Order’ (1978) 8 Israel Yearbook of Human Rights 78, 87.
- Dan Markel, ‘Against Mercy’ (2003–04) 88 Minnesota Law Review 1421, 1441, 1464–65; Rachel E Barkow, ‘The Ascent of the Administrative State and the Demise of Mercy' (2007–2008) 121 Harvard Law Review 1332, 1358–365. See also the shift from common law regulation of self-defence through pardons to its regulation through a criminal law defence; R D Yadav, Law of Crime and Self-defence (Mittal Publications 1993) 56–58.
- Markel (n 36) 1422, 1441.
- Osiel (n 4) 71–72.
- See eg Manual of Air Force Law (n 34) 156.
- For recent support for this approach see sources cited n 68 below.
- For a discussion of the difference between normative and factual approaches, see eg Bohrer (n 13) 218.
- For recent support for this sub-approach see eg Koji Kudo, ‘Command Responsibility and the Defence of Superior Orders’ (DPhil thesis, University of Leicester 2007) 11, 40.
- In order for this approach to be accepted, the duty to obey legal orders (currently found in Armed Forces Act 2006, s 12) should be interpreted as a duty to obey all orders, both legal and illegal, as long as the orders are not ‘manifestly unlawful’. See eg Edward Gunter, Outlines of Military Law and Customs of War (William Clowes & Sons 1897) 47. See also R v Liwyi [2010] CMAC 6 [24] (Can). Sometimes the two conditional liability approaches are conflated. One common way in which that is done is to interpret legal sources that have applied the normative approach as sources in which the issue of obvious immorality has only been used as presumptive evidence of the unreasonableness of the soldier's wrong belief that an (illegal) order was legal. See eg Stanley Yeo, ‘Mistakenly Obeying Unlawful Superior Orders’ (1993) 5 Bond Law Review 1, 7. This description of the law is really a gloss on the factual approach—;blatant immorality is viewed only as a factor that can alert a subordinate to illegality and removes the reasonable mistake claim. Adopting such an interpretation of these sources enables jurists who support the factual approach to argue these legal sources as well are supportive of the approach they endorse. Yet adopting such an interpretation ignores (or conceals) the true difference between the two conditional liability approaches. Unlike under the factual approach, under the normative approach, the non-obvious immorality of an order is treated as a reason to obey the order even when it is known to be illegal. This element of the normative approach is sometimes even explicitly stated; as it is the case, for example, in the two sources cited at the beginning of the current footnote.
- For recent support for this sub-approach see eg Patel (n 3).
- See eg William Winthrop, Military Law and Precedents (2nd edn, US Government Printing Office 1920) 296–97.
- Appeal/15/65, Chief Military Prosecutor v Gil and Hadar, 1965 PDZ 28 (Israel).
- ibid 30 (ruling that an illegal order, given in order to serve a private end of a commander, should always be disobeyed).
- Ministry of Defence, Operations (Royal Army Doctrine Publication 2010) 2–21. See also Leslie C Green, The Contemporary Law of Armed Conflict (2nd edn, Juris Publishing Inc 2000) 305–06.
- See the example discussed in Nico Keijzer, Military Obedience (Sijethoff and Noordhoff Publishers 1978) 242–43.
- See Operations (n 48) 6–21, 6–24. See also Thomas M Jordan, ‘Is Decentralized Command and Control of Tactical Maneuver Units a Myth or Reality?’ (US Army Command & General Staff College 1991) 25, 28–29, 35.
- The difference between non-emergency and emergency situations is implied in Operations (n 48) 7–4. See also Morris Janowitz, The Professional Soldier: A Social and Political Portrait (2nd edn, Free Press 1971) XIX, 4–5.
- John Parry, ‘Culpability, Mistake and Official Interpretation of Law’ (1997) 25 American Journal of Criminal Law 1, 24–25.
- See State v Christopher 345 F Supp 60, 61 (DC Mont 1972).
- Kelman and Hamilton (n 32) 92.
- The legal backing of the moral norm reduces the likelihood that a psychological process of rationalisation will lead the subordinates to view the order given to them as being given in an exceptional situation in which the moral norm does not apply. Daniel Munoz-Rojas and Jean-Jacques Frésard, ‘The Roots of Behaviour in War: Understanding and Preventing IHL Violations' (2004) 86 International Review of the Red Cross 189, 203.
- Brown (n 16) 643–44 (discussing American law); Bohrer (n 13) 220–21 (discussing Israeli law).
- See Brian J Bill and others, Law of War Workshop Deskbook (US JAG School 2000) 211–12.
- Articles 51(5)(b) and 57(2) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) June 8, 1977, 1125 UNTS I-1751 2.
- See Yves Sandoz and others, Commentary to Additional Protocol I (ICRC 1987) 683–84.
- US Army, Your Conduct in Combat under the Law of War (FM-27–2 1984) 26; Central District Court-Martial/85/86, Chief Military Prosecutor v Roteshtian and Regev (unpublished) (Israel); Jean-Marie Henckaerts and others, Customary International Humanitarian Law, vol 2(2) (CUP 2005) 3803, 3812.
- Compare with the rationale for setting rules of engagement for low-ranking soldiers discussed In Kenneth Watkin, ‘Warriors, Obedience and the Rule of Law’ (2000–01) 3 Army Doctrine and Training Bulletin 24, 27–29.
- Kelman and Hamilton (n 32) 159; Danielle S Beu and M Ronald Buckley, ‘This is War: How the up Politically Astute Achieve Crimes of Obedience through the Use of Moral Disengagement’ (2004) 15 Leadership Quarterly 551, 565.
- Osiel (n 4) 119, 241 n 21.
- As previously discussed, a legal policy that may achieve better results is one that delineates certain categories of orders that should be disobeyed.
- The concern for such harm is implicit in eg Manual of Air Force Law (n 34) 153, 310 (focusing on the duty to disobey manifestly unlawful orders, even though it supports an absolute liability approach).
- Cooke (1660) 5 St Tr 1077; Axtell (1661) 5 St Tr 1146.
- R v Clegg [1995] 1 All ER 334, 344 (House of Lords (HL)). See also Jonathan Herring, Criminal Law:
- Texts, Cases, and Materials (2nd edn, OUP 2006) 706.
- HG Hanbury ‘Case of Private Fargie’ The Times (London, 16 March 1951) 5; Anderson (n 8) 52; Ian D Brownlee, ‘Superior Orders: Time for a New Realism?’ (1989) The Criminal Law Review 396, 401; Yeo (n 43) 11. See also Robert Cryer, ‘Implementation of the International Criminal Court Statute in England and Wales' (2002) 51 International and Comparative Law Quarterly 733, 740–41; Kudo (n 42) 40.
- See eg Geoffrey Creighton, ‘Superior Orders and Command Responsibility in Canadian Criminal Law’ (1980) 38 University of Toronto Faculty Law Review 1, 14 (claiming that the common law supports a normative approach even though he views the factual approach as more appropriate).
- See eg Yeo (n 43) 7.
- One can also fnd a third group of rulings, where it is not clear whether the obedience to orders was taken as part of the consideration of the defendant's mens rea, or whether it was considered an independent defence. Eg R v James (1837) 8 C & P 131, 173 ER 429, 430; R v Trainer (1864) 4 F & F 105, 176 ER 488, 491–92. Supporters of the absolute liability description claim that these cases examined the issue of mens rea. Eg JW Cecil Turner, Russell on Crime, vol 1(12th edn, Stevens & Sons 1964) 88. Supporters of the other description claim that such cases are supportive of a superior orders defence. Eg Charles M Clode, The Military Forces of the Crown: Their Administration and Government, vol 2(John Murray Albemarle Street 1869) 150–51.
- eg Chief Justice Bushe's reply to the jury at a trial arising out of a Riot at Newtonbarry (1831) reported and discussed in Clode (n 71) 152; Lord Bowen, ‘Extracts from the Report of the Committee Appointed to Inquire into the Disturbance at Featherstone In 1893’ [c 7234], as cited in Dicey (n 23) 514–16.
- (1816) (Old Bailey) reported in DR Bentley, Selected Cases from the Twelve Judges' Notebooks (J Rees 1997) 114.
- eg Clegg (n 67) 344.
- I am intentionally not discussing, at this stage, the cases' circumstances. For the supporter of the two opposing camps these circumstances are not very significant (other than in order to claim that a ruling that they dislike is an obiter dictum) since each side supports a one-rule-fits-all policy. Later, such a discussion will be made as part of the examination of the middle path approach.
- eg Anderson (n 8) 53.
- Dawkins v Rokeby (1866) 4 F & F 806, 176 ER 800, 811 (KB); Marks v Frogley (1898) 1 QB 396, 404–05. See also Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences: With an Appendix Containing a Draft Code Embodying the Suggestions of the Commissioners (Chair: JF Stephen) (HMSO 1879) 72–73 (affording the defence for crimes done while dispersing a riot, but see page 18 of the report); James F Stephen, A History of the Criminal Law of England, vol 1 (Macmillan & Co 1883) 205–06. Some of these sources interpret the common law as supporting a normative approach, see eg Clode (n 71) 151; others interpret it as supportive of a factual approach, see eg Dicey (n 23) 302.
- (1866) 4 F & F 762, 176 ER 781, 793 (QB).
- See eg Yeo (n 43) 7.
- War Office, Manual of Military Law, vol 3(HMSO 1958) 176–77.
- MJ Prichard ‘The Army Act and Murder Aboard’ [1954] Cambridge Law Journal 232, 239. See also Armed Forces Act 2006, s 42.
- See R v Smith (1900) Cape of the Good Hope SC Rep 561, 568 (HC); Hilaire McCoubrey, The Obligation to Obey in Legal Theory (Dartmouth Pub Co 1997) 167.
- R v Taylor (1940) The Law Journal, 7 December 1940, vol XC, 227 (Manchester Autumn Assizes) (Stable J) (Lance-Corporal Taylor and his commander, a Sargent, were assisting an air raid warden, Taylor had obeyed an order of his commander to shoot at a car that did not dim its lights and he nearly hit the driver; the court applied the absolute liability approach, yet despite adopting that approach acquitted Taylor—ruling that because Taylor acted in obedience to an order he had lacked the intent to cause grievous bodily harm); War Office , Manual of Military Law (HMSO 1944) s 627 (absolute liability for war crimes); The Lord Chancellor's (Viscount Jowitt) speech in HL Deb 19 July 1950, vol 3, cols 447–48, 453 (stating that a conditional liability approach has long been a part of the common law); The Case of Linsell (1950), as cited in Ian Bisset, Trial at Arms: Some Famous Trials by Court Martial (MacGibbon & Kee 1957) 133, 156, and discussed, along with the Private Fargie Case (1951), in Gerry R Rubin, ‘Sentries Guarding Instructions and Lethal Forces: From the Present to the Past' (2002) 147(6) RUSI Journal 82, 83, 85 (in both cases, the Judge-Advocates ignored the relevant segment of the British Manual of Military Law of that time—;which supported a conditional liability approach for military offences—;and claimed that obedience to orders is never a defence); British Manual of Military Law of 1956, as cited in Anderson (n 8) 52 (where the previous support in the military manuals for a conditional liability approach in dealing with military offences was replaced by support for an absolute liability approach).
- See Amnesty International, ‘Memorandum Submitted by Amnesty International to the Parker Committee on Interrogation Procedures' (Report of an Enquiry into Allegations of Ill-Treatment in Northern Ireland, 1972) 40, para 6(i)(d) <http://www.amnesty.org/es/library/asset/EUR45/001/1976/en/226ef707–6b68–4a53–9143–25ee2bb46d3f/eur450011976en.pdf> accessed 4 December 2012. In this period of time, few rulings were given dealing with the issue of a superior's order, but they either did not deal with soldiers, or it is not clear from the case that an order was actually given. Brennan v Peek (1948) 1 KB 68, 69–70 (a police Officer); R v Ball and Laughin (1966) 50 Cr App R 266, 267 (CA) (a soldier, but it is not clear that an order was given); Lewis v Dickson (1976) RTR 431, 435 (DC) (a private employee).
- Abbot v R [1977] AC 755, 766 (PC); R v Howe [1987] 1 AC 417 (PC); Yip Chiu Cheung v R [1994] 2 All ER 924, 928 (PC); Clegg (n 67) 344.
- eg Herring (n 67) 706.
- eg Cryer (n 68) 740–41.
- Rome Statute of the International Criminal Court, A/Conf 189/9 (17 July 1998), art 33.
- International Criminal Court Act 2001 (UK).
- eg Cryer (n 68) 740–41; Christopher Staker, ‘Defence of Superior Orders Revisited’ (2005) 79 Australian Law Journal 431, 445–46.
- Ministry of Defence, The Manual of the Law of Armed Confict (OUP 2004) 445.
- See obiter dictum in the Kendall-Smith case from 2006 (unreported case cited in R v Prime Minister (2008) UKHL 20 [50] (Baroness Hale)). Moreover, see the unpublished court martial case concerning abuses in Breadbasket camp, Iraq, during 2003. The judge there ordered that the charges be dropped, because: ‘It is now effectively common ground that the brigade did indeed sanction the use of hooding and stress positions', as reported In Peter Graff, ‘British Judge Says Headquarters Okayed Iraq Abuse’ (Reuters, 12 March 2007) <http://www.reuters.com/article/2007/03/12/us-iraq-britain-trial-idUSL1252261120070312> accessed 4 December 2012.
- R v Prime Minister (n 92).
- eg Kudo (n 42) 40. See also Cryer (n 68) 740–41.
- eg Georg Nolte and Heike Krieger, ‘European Military Law Systems: General Comparative Report' in Georg Nolte (ed), European Military Law Systems (DeGruyter Recht 2003) 19, 96.
- Uncertainty in a penal conduct rule is inappropriate since it creates a problem of lack of fair-notice. See Paul H Robinson, ‘Fair Notice and Fair Adjudication’ (2005–06) 154 University of Pennsylvania Law Review 335, 364–65. A fair notice problem clearly exists if it is not clear whether a normative approach applies or an absolute liability approach applies; since according to the former there are some illegal orders that should be obeyed (even if the soldier knows that the order is illegal), while according to the latter all illegal orders must be disobeyed. For similar reasons a fair notice problem also exists when it is not clear whether a normative or a factual approach applies. Yet, the fact of the matter is that a fair notice problem exists even if it is unclear whether an absolute liability approach or a factual approach is the applicable law; even though both approaches instruct soldiers to disobey illegal orders. That is because each of these two approaches has a different effect on a subordinate's behaviour. Soldiers do not have perfect knowledge of the law. Under both approaches, a soldier will be punished if she mistakenly disobeys a legal order. The two approaches differ in how they treat a soldier who mistakenly obeys an illegal order. The absolute liability approach calls for the punishment of such a soldier, whereas the factual approach allows for the acquittal of a soldier whose mistaken obedience is deemed reasonable. Thus a higher threshold of doubt is attached to the factual approach in comparison to one attached to the absolute liability approach. Under the factual approach, a soldier will only disobey when she thinks it is relatively clear that an order is illegal, while under the absolute liability approach, the soldier will tend to disobey even when she is less certain about an order's legality. When the law is unclear, however, soldiers do not know which threshold of doubt to adopt when they need to decide whether to obey a suspected order.
- Inconsistent application of a penal decision rule is inappropriate since it creates a fairness problem in which similar individuals are not treated alike. See ibid 366–67. See also Patel (n 3) 129 (stating that English case law on the subject has ‘been erratic and at times inconsistent’).
- See n 50 above.
- Kaplan (n 25) 1139–140.
- See Osiel (n 4) 346–47 n 21 (‘Because Officers above a certain rank possess decision-making capacity…, military law in many societies denies them the superior orders defense’).
- See n 50 above. See also Antonio Cassese, International Criminal Law (OUP 2003) 246.
- See Robert D Sloane, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law' (2007) 43 Stanford Journal of International Law 39, 72–74.
- Keijzer (n 49) 63.
- See Medina (n 20) 82.
- See n 56–60 above. It is beyond my ability within the limits of the current article to fully develop the details of such a legal schema. Recent analyses I made elsewhere further outline the content of such a fragmented law, yet without tailoring a model law Specifically for England; see Bohrer (n 14) ch 10; Ziv Bohrer, ‘The Superior Orders Defense: A Principal-Agent Analysis’ (2012) 41(1) Georgia Journal of International and Comparative Law (forthcoming). As stated there, the details of such a legal schema should vary between legal systems, depending on the attributes of the Specific system. It should also be stressed that I am not claiming that the suggested scheme will solve all problems of lack of certainty, fair notice, and fairness; my claim is only that it is likely to be more appropriate than the currently suggested policies.
- eg John C Smith, Smith and Hogan Criminal Law (10th edn, Butterworths 2002) 287–88; Richard Card, Card, Cross and Jones Criminal Law (20th edn, OUP 2012) 724; David Ormerod, Smith and Hogan Criminal Law (12th edn, OUP 2008) 357–58.
- This impropriety occurs also in other areas of the common law. See Jerome Frank, Law and the Modern Mind (Brentano's 1930) 148–59; Stephen Waddams, Dimensions of Private Law (CUP 2003) 222–23.
- See n 81 above.
- In fact, even many sources supportive of the two main positions are currently rarely referred to. Most sources cited at n 72 and n 83 above are examples of such rarely cited sources.
- Keighly v Bell (n 78) 793.
- ibid, as cited in Clode (n 71) 152.
- eg War Office, Manual of Military Law (HMSO 1914).
- eg Anderson (n 8) 52–53.
- Manual of Military Law (n 112) 17–18.
- ibid 302.
- ibid 144.
- eg Sutton v Johnstone (1786) 1 TR 493, 546, 99 ER 1215, 1244; Clode (n 71) 157; James F Stephen, A History of the Criminal Law of England, vol 2(Macmillan & Co 1883) 62–63.
- eg ‘Ordinary of Newgate's Account’ (Old Bailey Proceedings Online, 8 February 1721) third reasoning <http://www.oldbaileyonline.org/browse.jsp?id=OA17210208&div=OA17210208#highlight> accessed 4 December 2012 (obiter dictum); the case of ‘Breaker’ Morant (1904) as cited in Nick Bleszynski, Shoot Straight, You Bastards! The Truth Behind the Killing of ‘Breaker’ Morant (Random House Australia 2003) 324; Birkenhead Committee of Enquiry on War Crimes, 1918, as cited In NCH Dunbar, ‘Some Aspects of the Problem of Superior Orders in the Law of War’ (1951) 63 Juridical Review 234, 243.
- See n 72–73 above (sources supportive of an absolute liability approach). The law regarding obedience to illegal orders was, at that time, mainly disputed in the context of orders given in a situation that is not combative on the one hand, and is not a peacetime activity on the other: orders given to soldiers aiding to disperse a riot. See Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750, vol 4(Sweet & Maxwell 1968) 126–29. For sources supportive of a conditional liability approach in the context of riots, see Report of the Royal Commission (n 77) 72–73; Stephen (n 77) 206; Dicey (n 23) 302; case of Captain Lewis, briefy mentioned in R v Pinney (1832) 3 St Tr 17, 277–78.
- See the military law books that were used to instruct the courts martial at that time, eg TF Simmons, Remarks on the Constitution and Practice of Courts Martial (2nd edn, F Pinkney 1835) 207–09; W Hough, Precedents in Military Law Including the Practice of Courts Martial 104 (WH Allen 1855) (Hough was for many years the Deputy Judge Advocate General); SC Pratt, Military Law—Its Procedure and Practice (19th edn, Kegan Paul, Trench & Trübner 1915) 115. The most significant of these sources is E Samuel, Historical Account of the British Army and Law Military (Clowes 1816) 283–88. This is, to the best of my knowledge, the first English source referring explicitly to the manifest illegality test in the context of domestic crimes. Samuel makes his statement without citing an English verdict. Instead, he cites sources from Roman and Canon Law. That is appropriate since, to a great degree, English military law of that time relied on these legal sources.
- Compare Keighly v Bell (n 78) with Dawkins v Lord Rokeby (n 77).
- Kidd (1701) 14 St Tr 147, 185, 215–16, 235 (distinguishing between six sailors and three servants).
- R v Wall (1802) 28 St Tr 51, 144–45, 156–57.
- Gerry R Rubin, ‘United Kingdom Military Law: Autonomy, Civilianization, Juridifcation' (2002) 65 Modern Law Review 36, 36–42; Council of Europe, Parliamentary Assembly Recommendation 1742 (2006).
- R (Smith) v Secretary of State for Defence [2010] UKSC 29 (ruling that usually during an armed confict soldiers do not retain their right to life).
- Theo Vogler, ‘The Defense of Superior Orders in International Criminal Law' in MC Bassiouni and Ved P Nanda (eds), A Treatise on International Criminal Law, vol I (Charles C Thomas 1973) 619, 627.
Oxford University Commonwealth Law Journal
Volume 12, 2012 - Issue 2