Military ethics and the responsibility of the soldier
(By 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
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
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.
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
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
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 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
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
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
These conditions however do not apply to genocide or
crimes against humanity.
Military ethics in the field of command responsibility
and subordinate responsibility portend complex legal, social and moral
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.
Courtesy: Daily News